Thread by @OrinKerr

I'll be posting a new article draft in a week or two about government-ordered content preservation -- when the government tells your e-mail or messaging provider to save a copy of your entire account for the govt in case the govt comes back later with a warrant to disclose it. /1

This happens to hundreds of thousands of U.S. accounts every year. The government does it all the time, with no cause. I argue in the article that preservation is a seizure that requires at least reasonable suspicion, and in most cases, probable cause. /2

A key part of the article is the first-ever public explanation of how preservation requests work. How the govt and providers think of it; how requests are made and how providers respond; how it relates to ultimate production; and why it's all secret, hidden from the user. /3

That part is based on "on background" interviews I conducted with major players in the process, which enabled me to get candid perspectives although without naming or quoting sources. (I know, weird for a law review article, but the best path here, I think.) /4

I'll post a draft for comment on SSRN soon, probably in two weeks. The article is forthcoming as the 2020 Childress Lecture to be published in the @SLULawJournal. Stay tuned. /5