Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 16 of 32 and Hately explicitly supports a finding that deleted content is not backup storage. Thus, the Court need not determine the appropriate standard for delivered, undeleted messages. The emphasis in Theofel is on the purpose of the storage: [T]he mere fact that a copy could serve as a backup does not mean it is stored for that purpose. We see many instances where an [ECS] could hold messages not in electronic storage—for example, e-mail sent to or from the [provider]’s staff, or messages a user has flagged for deletion from the server. In both cases, the messages are not . . . kept for any backup purpose.” Theofel, 359 F.3d at 1070. Even under Theofel, the purpose of backup storage must be to backup the original. See Gonzales, 2018 WL 4616266, at *4 (applying Theofel, location data retained only by provider but not by the user was not backup storage). The Crispin court applied Theofel’s holding to a hypothetical context in which “Facebook . . . retain[ed] copies of webmail or private messaging communications on [its] servers separate from the storage available to [a user].” See Crispin, 717 F. Supp. 2d at 987 n.46. The court assumed that such off-platform data would be protected as backup storage unless it fell into one of Theofel’s exceptions, including “messages a user has flagged for deletion.” Id. (quoting Theofel, 359 F.3d at 1076). Even the broadest interpretation of backup storage carved out content deleted from the platform. This is devastating to Facebook’s argument. Facebook argues that because the provider-deleted content remains on Facebook servers in proximity to where active content on the platform is stored, both sets of content should be protected as backup storage. See Conf. Tr. at 76. However, the question is not where the records are stored but why they are stored. See Theofel, 359 F.3d at 1070. Facebook claims it kept the instant records as part of an autopsy of its role in the Rohingya genocide. See Conf. Tr. at 80–81. While admirable, that is storage for self-reflection, not for backup. Moreover, Facebook’s interpretation of backup—anything on its servers—reads the term out of the statute. Congress limited the SCA 16