Criminal Defense Lawyers, This Is For You: A Model Motion to Suppress on Internet Content Preservation

A draft motion to litigate the claims suggested by my recent law review article.

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.

Comments

[David Welker]

This nearly seems to me to be an ideal form of scholarship, at least with respect to that which has a practical orientation.

Testing well-developed scholarly ideas in the real world while also increasing the efficiency of the practice of law.

[DaivdBehar]

Prof. Kerr's proposal is self evident and simple. Yet, it has not been accepted by the defense bar. This is good evidence of its low intelligence.

[Orin S. Kerr]

Thanks, David.

[YepThatGuy]

I'm not entirely convinced that this assertion of yours is true: "It was an unreasonable seizure because it was not based on probable cause or even reasonable suspicion." I have prosecuted a substantial number of cases in which preservation was requested (and obtained), and assisted with investigations in which preservation was done that for one reason or another did not result in prosecution. I can't think of one in which there wasn't reasonable suspicion to justify the preservation. If there are articulable facts that one is a "suspect," then contents of that suspects "private messages in his personal Internet account" may likely prove that suspects whereabouts, with whom he or she was communicating, and sometimes even the contents of the communications.

I suppose there is merit to the argument when preservation is done in a "round up the usual suspects" kind of way, but I don't have a sense that that's the predominant use of the tool.

[Orin S. Kerr]

Thanks for the comment, Yep. I agree that there will be some cases where there was reasonable suspicion. But the primary limit on investigative detention based on reasonable suspicion is *time,* right? You might be able to conduct a reasonable suspicion investigative detention of property for 20 minutes, or an hour. In a case based on seizing mail for a dog sniff, maybe a day. But preservation is usually a matter of months; how can you fit the reasonable suspicion framework for a Terry temporary detention into a seizure that went on for months?

[YepThatGuy]

***edit to add "often" before "true" in the first sentence" ***

[YepThatGuy]

I also struggle with the notion that the 4th Amendment allows officers to break through your front door to seize your felony quantity of dope before you finish flushing it down the toilet, but won't allow your data to be retained against the possibility of you deleting it while the government gets a warrant. Abd yes, a warrant shouldn't take 90 days (or more with extensions), but that's the statutory authorization for now.

[Orin S. Kerr]

Yepthatguy, I agree that, if the government has probable cause, they can seize the account while they act with diligence to get a warrant. But the statute doesn't actually authorize the seizure for 90 or 180 days, and even if you read that as implicit in what it says about what providers must do, that's a question of remedy, not a question of rights.

[Bored Lawyer]

Prof. Kerr -- given that the data belongs to the ISP, not the individual user, I wonder whether there are standing issues here. I was under the impression when third parties hold your data, that there are no 4th Amendment rights, or no standing to assert them in a criminal trial.

[Orin S. Kerr]

No, that's not what courts have held. Users have full Fourth Amendment rights in the contents of their accounts; they have standing, and it's their files for 4th Amendment purposes. (This is even true for some non-content business records under Carpenter; the user doesn't know the business records exist, but they have 4th Amendment rights and standing in them.)

[Rev. Arthur L. Kirkland]

I would buy you a beer, Prof. Kerr, except

(1) you made that about 2,400 miles more difficult

and

(2) I would get that beer for free (still, though, a beautiful gesture on my part).

[Orin S. Kerr]

At least I still have the hat! A little "red" style for Berkeley, though.

(Thanks again for the beer.)

[Rev. Arthur L. Kirkland]

I didn't pay for the hat, either.

I'm such a fraud.

[Archibald Tuttle]

Has the government ever issued a blanked order to preserve all data on all users indefinitely? In other words, fishing.

[Rev. Arthur L. Kirkland]

A blanked order might not work . . . or, on second thought, might be the perfect document for that job!

[santamonica811]

When I worked for a small law firm, and for a medium firm, one of our most valuable assets was the reservoir of briefs, motions, etc.. The attorneys saved thousands of hours of work not having to reinvent the wheel.

It would seem that the internet is the *perfect* vehicle for scaling this upwards. For many attorneys to do what you have done...create model briefs that would be put into the public domain (well, at the very least, into mass-use and free-use for licensed attorneys). A searchable database would be an invaluable resource, and might even level the field with those who have to go against the government, which often has essentially unlimited resources.

I have tons of different writs, briefs, motions related to child abuse cases. You have 4th Amendment stuff. Eugene probably has (or his student could create) tons re First and Second Amendment issues. And so on.

All it would require is (a) someone with the ability to create an online database (b) a willingness for attorneys to give up their right to receive copyright royalties for these documents when other attorneys use them, and (c) enough publicity to get the word out.

It seems like such an obvious idea that I feel like it's already been done. Has it???

[3ducerist]

(a) not so hard to do, though much harder to create an effective user interface involving searches if my experience with knowledge bases is any hint. (b) likely much harder to do consider the proliferation of internet legal sites and I would think drawing likely suits from them even if just to harass into oblivion the new database. (c) given enough publicity it may even get enough to mount a legal defense from the jerks in (b) who try to sue.

Lovely idea!

[David Nieporent]

I don't think it has anything to do with "copyright royalties." It has to do with the fear that nobody needs to hire you if you give away all your work publicly. (Of course, once you file with a court it becomes a matter of public record and other people can access it — but you've still got security through obscurity. Unless people know where to look, most people aren't going to find it.)

[santamonica811]

Yes, true, I guess. In part. But, frankly, I don't care if you steal or borrow my brilliant motion to gain de facto parent status. You *already* have your client, after all. So, I'm not losing money on the deal. Or, if I am, it's so speculative that it's not worth me worrying about. And, of course, while you're using my motion on de facto status, I'm using your donated brief on blocking testimony from a cop after she told the detained person "X, Y, and Z." in order to get a confession. The whole point is that, if enough attorneys do this, then all our lives are made easier, because we now have access to really top-quality documents. We're happy. The judges who have to read our moving documents are REALLY happy, the clients (who are paying less, since you and I now can work more efficiently, and in less time) are also REALLY happy.

I think the only big losers are attorneys who are lucky enough to be paid by the hour, *and* also don't have enough clients--they, obviously, are happy to work honestly-but-inefficiently, and are perfectly happy to spend 10 hours on a brief, when it would have been only 4 hours by using this sort of database. I'm not sure how many attorneys fall into this category. Maybe it's a large percentage? Maybe it's a small percentage?? But I'm not letting perfect be the enemy of the good.

[Frog Legs]

An interesting motion, and if the issue ever comes up in practice I might give it a whirl (Always been a fan of burying persecutors in paper). Sadly, my criminal practice is mostly in the genres of domestic abuse, small time drug peddling, and stealing from the local Wal-Mart. I'm lucky if the Dees can read, ask them to write? No sir!

[Sidney r finkel]

In all of this discussion, I fail to understand why internet accounts are singled out for special preservation provisions.

It would seem that information on an internet account is simply an electronic version of information, and in legal theory should be no different and treated no different than paper or other forms of information. It would also seem that the government has no authority to require an individual to retain each and every piece of paper based information, recorded information or any other type of information on an a priori basis, that is without a warrant or at least reasonable cause. Is my shredder in violation of the law?

In fact I would argue the each and every individual in the nation legally destroys paper information, audio information, video information and the like as regular practice as long as the individual is not under court order to preserve such information. Right?

So does government have the power to require preservation of all non-verbal information absent a cause to do so? If so that is surely a huge and radical change in our juris prudence system. If not, then how can internet account be singled out and not be unconstitutional?

Can Prof. Kerr or someone help me out here?

[alexarafat]

This model motion to suppress on internet content preservation is a fantastic resource for criminal defense lawyers! It directly tackles the Fourth Amendment concerns raised by preservation practices. If you're handling cases involving internet account contents, this could be a game-changer.

For more insights into legal strategies and navigating complex cases, I’ve found https://www.sevenslegal.com/ to be a helpful resource—it’s worth checking out for additional support!

[alexarafat]

Legal challenges to government preservation of internet content are crucial in shaping Fourth Amendment law. This model motion provides a valuable resource for defense attorneys navigating these issues. Just as having the right legal tools matters in court, access to immediate care is essential in emergencies. I experienced this firsthand when I needed urgent dental care and found https://markhamgatewaydentistry.ca/emergency-dentist-in-scarborough/ which provided the treatment I needed. Resources like this motion—and access to emergency services—can make a significant impact when time is critical.

[cliffseaton219]

Few days ago I heard these things in a podcast.