Updated Model Motion to Suppress For Unlawful Internet Preservation
Hey, criminal defense lawyers, this is for you.
As regular readers know, I am very interested in how the Fourth Amendment applies to Internet preservation—the practice, applied to a vast number of Internet accounts every year, of the government having Internet providers run off copies of accounts without cause and holding the copes in case the government comes back with a warrant. As I explained in this 2021 article, I think there are significant Fourth Amendment limits on preservation that governments are currently ignoring.
But it's not just a theory; it's also a brief! Last year I posted a draft motion to suppress for criminal defense lawyers to file in preservation cases, and I recently updated the motion and have posted the updated versions here: .pdf draft motion to suppress (or, to download the word version to edit and file it, here: .docx draft motion to suppress). If you're a criminal defense attorney, know a criminal defense attorney, or live in the same state as a criminal defense attorney, please feel free to share the brief with the criminal defense lawyers you know.
As it happens, getting defense lawyers to file the brief has been a challenge. As I noted on Twitter a while back:
I wish the level of interest defense counsel had in filing my model motion to suppress for 2703(f) preservation were as high as the level of concern prosecutors have that defense counsel might file the model motion.
— Orin Kerr (@OrinKerr) January 21, 2023
Part of the problem is that the preservation process is largely hidden. Prosecutors don't normally disclose that preservation occurred. And when it's disclosed, the disclosure is usually subtle: It is referenced in the warrant materials in order to help the providers comply with the warrant, but the form itself is not provided. So prosecutors know the issue exists, but they don't disclose or highlight the fact of preservation; while defense lawyers don't know the issue exists, and they don't know that there's an important form they should be asking for but haven't received. And so preservation goes on and on without being challenged in court, even though there are (I think) very good arguments it is illegal and the arguments can be made easily by just filing the model brief.
As always, stay tuned.