Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 11 of 32 highlights government agents’ inclusion in SCA protection, not their exclusion from the “any individual” category. Moreover, The Gambia’s attempt to partition these categories does not comport with the SCA’s legislative history. Congress was concerned with “civil litigants issuing discovery requests” and thus sought to protect all individuals from unauthorized access. Suzlon, 671 F.3d at 730. Myanmar officials are individuals. The inclusion of “entity” in the definition of “user” provides an independent basis for SCA coverage. The ordinary definition of “entity” includes “a governmental unit[] that has a legal identity apart from its members or owners.” See Pet’r’s Reply at 6 (quoting Black’s Law Dictionary (11th ed. 2019)). That definition covers the state-sanctioned, coordinated inauthentic content at issue here. 5 See De-platforming Post. Therefore, Facebook is an ECS as to the content in question. 6 5 The Gambia makes a novel argument that the Myanmar government agents were not “authorized” users (and thus outside the scope of the SCA) because Facebook later banned them for terms of service violations. See Pet’r’s Reply at 9–11. As explained below, application of the SCA is not tied to terms of service violations. Thus, ruling on whether the users were duly “authorized” is unnecessary; particularly given that analyzing such question would require facts not before this court, such as when did each account violate the terms of service. 6 The SCA also covers providers of remote computing services (“RCS”). See 18 U.S.C. § 2702(a). An RCS is subject to the same prohibitions on content disclosure as an ECS. See id. RCS is defined as “the provision to the public of computer storage or processing services by means of an electronic communications system.” Id. (emphasis added). Waiting until its surreply, Facebook asserted in a footnote that it is also an RCS and that it “reserves” the right to argue this as a basis against disclosure. Resp’t’s Surreply at 2, n.1. “[A]rguments raised in footnotes are not preserved.” SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006). Waiver is particularly appropriate where the parties declined the opportunity for further briefing, cf. Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 93 n.3 (D.C. Cir. 2002), which Facebook did here, see Conf. Tr. at 159. In any case, the RCS argument is without merit. “Whether an entity is acting as an RCS or an ECS (or neither) is context dependent, and depends, in part, on the information disclosed.” Low v. LinkedIn Corp., 900 F. Supp. 2d 1010, 1023 (N.D. 11