Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 17 of 32 to protection of backup storage rather than all electronic storage. See 18 U.S.C. § 2510(17). This Court “construe[s] [the SCA] so that effect is given to all its provisions.” Delaware Dep’t of Nat. Res. & Env’t Control v. EPA, 895 F.3d 90, 99 (D.C. Cir. 2018) (internal quotation omitted). Facebook’s reliance on Hately is similarly misplaced. See Resp’t’s Surreply at 3–4. The Hately court reasoned that “a wire or electronic communication is stored for ‘purposes of backup protection’ if it is a ‘copy’ or ‘duplicate’ of the communication stored to prevent, among other things, its ‘destruction.’” Hately, 917 F.3d at 791. Here, Facebook itself “destroyed” the content in question by removing it from its platform and banning the associated accounts. While Facebook retained offline access to the deleted content, that access was not was not meant to prevent its destruction on the platform—indeed far from it, as Facebook deemed that content illicit and unwelcome on its platform. 9 The SCA was created to allow platforms to flourish for users, not to protect records for a provider. See e.g., Suzlon, 671 F.3d at 729–30. The Hately court’s reliance on the three legislative history prongs is inapposite here. 10 First, the risk of a chilling effect deterring potential users from “using innovative communications systems,” S. Rep. No. 99-541, at 5 (1986), is nonexistent as Facebook usage is already ubiquitous, 9 Backup protection need not be solely for the benefit of the user. See Hately, 917 F.3d at 795. The provider may create backup copies for self-serving reasons, such as “decreasing email downtime, protecting against loss of data in the event a particular server fails, and for their own commercial purposes, such as to more effectively target advertisements.” Id. (citation omitted). Facebook has not alleged that the instant offline retention served any such commercial purposes recognized by courts. Moreover, the backup protection determination is not based on who, if anyone, is benefitted, but rather if the purpose was for backup storage. 10 The Hately court held that the messages a user “chooses not to delete . . . [we]re likely precisely the types of messages Congress sought to protect.” Hately, 917 F.3d at 798 (emphasis added). Nothing suggests that messages a provider chooses to delete for violating terms of service and fanning the flames of genocide are the kind of messages Congress sought to protect. Moreover, “the Supreme Court [has] reiterated . . . [this] resort to legislative history is not appropriate in construing plain statutory language.” U.S. ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 494 (D.C. Cir. 2004) (collecting cases). 17