Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 19 of 32 https://apnews.com/hub/facebook-privacy-scandal-. In 2019, Facebook was fined $5 billion by the government after “deceiving users about their ability to control the privacy of their personal information” in violation of a prior FTC order. Federal Trade Commission Press Release, FTC Imposes $5 Billion Penalty and Sweeping New Privacy Restrictions on Facebook (July 24, 2019), https://www.ftc.gov/news-events/press-releases/2019/07/ftc-imposes-5-billion-penaltysweeping-new-privacy-restrictions. These facts undercut the moral suasion of this argument. Regardless, this is the way Congress authored the SCA. When a user signs up for a Facebook account, they agree to abide by Facebook’s terms of service. See Terms of Service, Facebook, https://www.facebook.com/terms. Failure to abide by these terms may result in Facebook unilaterally deleting the account. See Why is my personal Facebook account disabled?, Facebook, https://www.facebook.com/help/103873106370583/. And once content is deleted from the platform, it is no longer protected by the SCA. See infra. Thus, Congress empowered ECSs to denature parts of the SCA. But de-platformed content is just one of the many SCA exceptions. Other provisions similarly permit providers to make unilateral determinations about “disclos[ing] records, information, and contents of accounts.” United States v. Sykes, No. 3:18-cr-178, 2020 WL 8484917, at *9 (E.D. Tenn. Oct. 5, 2020). So, in a twist of irony, Facebook already held the keys to many of the SCA’s privacy protections. 12 12 Facebook is right that foreign governmental and foreign/domestic non-governmental entities may more easily obtain de-platformed content (via a subpoena) than U.S. law enforcement (via a search warrant). See Resp’t’s Opp’n at 12. This merely reflects that the Constitution places the greatest burden on U.S. authorities when conducting searches. Civil litigants, domestic and foreign, can frequently obtain records more easily than the U.S. government can. This is not a reason to upend Congress’ explicitly laid out statutory scheme. Moreover, Congress’ primary concern was limited to U.S. government action according to the statute’s text. See Suzlon, 671 F.3d at 730. 19