Preservation Requests and the Fourth Amendment

Every day, Facebook, Twitter, Google, Amazon, ridesharing companies, and numerous other service providers copy users’ account information upon receiving a preservation request from the government. These requests are authorized under a relatively obscure subsection of the Stored Communications Act (SCA). The SCA is the federal statute that governs the disclosure of communications stored by third party service providers. Section 2703(f) of this statute authorizes the use of “f” or “preservation” letters, which enable the government to request that a service provider “take all necessary steps to preserve records and other evidence in its possession” while investigators seek valid legal process. This Article aims to impartially present and evaluate both the benefits and harms of using “f” letters as a law enforcement tool. Part I provides the background of the SCA and places the statute in historical context. Part II surveys various service providers’ Terms of Service and Privacy Policies and provides statistics regarding the use of preservation letters. Part III analyzes both the benefits and harms resulting from the government’s use of “f” letters. Finally, Part IV suggests a remedy that enables investigators to continue using “f” letters when appropriate while also limiting the privacy harms that can occur under the existing process