§803-47.7  Backup preservation.  (a)  A
governmental entity may include in its court order a requirement that the
service provider create a backup copy of the contents of the electronic
communication without notifying the subscriber or customer.  The service
provider shall create the backup copy as soon as practicable, consistent with
its regular business practices, and shall confirm to the governmental entity
that the backup copy has been made.  The backup copy shall be created within
two business days after receipt by the service provider of the subpoena or
court order.



(b)  The governmental entity must give notice
to the subscriber or customer within three days of receiving confirmation that
a backup record has been made, unless notice is delayed pursuant to the
procedures herein.



(c)  The service provider shall not destroy the
backup copy until the later of:



(1)  The delivery of the information; or



(2)  The resolution of any proceedings, including any
appeal therefrom, concerning a court order.



(d)  The service provider shall release the
backup copy to the requesting governmental entity no sooner than fourteen days
after the governmental entity's notice to the subscriber or customer, if the
service provider:



(1)  Has not received notice from the subscriber or
customer that the subscriber or customer has challenged the governmental
entity's request; and



(2)  Has not initiated proceedings to challenge the
request of the governmental entity.



(e)  Within fourteen days after notice by the
governmental entity to the subscriber or customer under subsection (b) of this
section, the subscriber or customer may file a motion to vacate the court
order, with written notice and a copy of the motion being served on both the
governmental entity and the service provider.  The motion to vacate a court
order shall be filed with the designated judge who issued the order.  The
motion or application shall contain an affidavit or sworn statement:



(1)  Stating that the applicant is a customer or
subscriber to the service from which the contents of electronic communications
are sought; and



(2)  Setting forth the applicant's reasons for
believing that the records sought does not constitute probable cause or there
has not been substantial compliance with some aspect of the provisions of this
part.



(f)  Upon receiving a copy of the motion from
the subscriber or customer, the governmental agency shall file a sworn response
to the court to which the motion is assigned.  The response shall be filed
within fourteen days.  The response may ask the court for an in camera review,
but must state reasons justifying such a review.  If the court is unable to
rule solely on the motion or application and response submitted, the court may
conduct such additional proceedings as it deems appropriate.  A ruling shall be
made as soon as practicable after the filing of the governmental entity's
response.



(g)  If the court finds that the applicant is
not the subscriber or customer whose communications are sought, or that there
is reason to believe that the law enforcement inquiry is legitimate and the
justification for the communications sought is supported by probable cause, the
application or motion shall be denied, and the court shall order the release of
the backup copy to the government entity.  A court order denying a motion or
application shall not be deemed a final order, and no interlocutory appeal may
be taken therefrom by the customer.  If the court finds that the applicant is a
proper subscriber or customer and the justification for the communication
sought is not supported by probable cause or that there has not been
substantial compliance with the provisions of this part, it shall order
vacation of the order previously issued. [L 1989, c 164, pt of §1; am L 2006, c
200, pt of §4]