The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I recently wrote a law review article, The Fourth Amendment Limits of Internet Content Preservation, 65 St. Louis University Law Journal 753 (2021), on the widespread practice of governments directing Internet providers to copy and store contents of Internet accounts without probable cause or even reasonable suspicion just in case they later develop probable cause to get access to the contents with a warrant. This practice, known as "preservation," happens to hundreds of thousands of Internet accounts every year. In the article, I explain why I think current preservation practices are mostly unconstitutional. Preservation is a Fourth Amendment seizure, and it should ordinarily require probable cause.
My article naturally points to a Fourth Amendment claim that I think criminal defense lawyers should be making. And it's an argument I have been suggesting to criminal defense lawyers for years. But defense lawyers haven't taken me up on the suggestion; the issue has generally remained unlitigated.
To help make the argument easier for defense lawyers to make, I decided to write a model motion to suppress. It's my own take on what criminal defense counsel should be arguing to best litigate the Fourth Amendment limits on preservation. You can read the model motion in .pdf format here: Preservation Draft Motion April 2022.pdf. Alternatively, if you are a lawyer who is interested in filing the motion, you can download the draft motion in Microsoft Word format (so you can edit it, format it, and the like) here: Preservation Draft Motion April 2022.docx.
I expect to tinker with the model motion over time in response to suggestions or future court rulings. But my hope is that the existence of the draft motion will make it easier for defense lawyers to raise this issue. The arguments in the motion are primarily legal, not factual, so defense lawyers should only have to make minor changes to the motion to use it in their cases.
As the cover page of the motion explains, the motion is potentially useful whenever the government is seeking to use contents obtained from a client's Internet account. When that is the case, defense counsel should ask the government if the warrant used to obtain the contents was preceded by preservation under 18 U.S.C. § 2703(f)— and if so, on what date the preservation request was made. The brief can be filed if preservation occurred, with the date preservation occurred and the date the warrant was served filled in where noted in the brief.
Finally, if criminal defense lawyers out there have ideas on how I can spread the word about this model motion, please let me know (email is orin at berkeley dot edu). My hope is that the model motion can lead to real motions being filed, and that can lead to rulings on this question that develops Fourth Amendment law accordingly.