Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 12 of 32 Electronic Storage An ECS provider is prohibited from divulging communications “while in electronic storage by that service.” 18 U.S.C. § 2702(a)(1). “[The ‘electronic storage’] requirement is commonly misunderstood because the statutory definition of ‘electronic storage’ is much narrower than its name suggests.” Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 839 (8th Cir. 2015) (quoting Robison, supra at 1206). The SCA defines two types of “electronic storage.” 18 U.S.C. § 2702(17). The first is temporary storage, which includes “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.” Id. § 2510(17)(a). It is undisputed that the content in question was “delivered,” Hately, 917 F.3d at 785, or “post[ed],” Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 989 (C.D. Cal. 2010). Because the content had reached its destination, it was not in temporary storage. See Hately, 917 F.3d at 784–85; Crispin, 717 F. Supp. 2d at 989. The second is backup storage, which includes “any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” 18 U.S.C. § 2510(17)(b) (emphasis added). The parties agree that the question is whether the records sought are backup storage. See Pet’r’s Reply at 12–13; ECF No. 15 (Resp’t’s Surreply) at 3–4. a. The Problem Of Content Moderation Cal. 2012) (citing Kerr, 72 Geo. Wash. L. Rev. at 1215). Out of the gate, Facebook is incorrect to assert that it is always an RCS. The question here is whether Facebook was acting as an RCS for the deleted content it preserved. See id. at 1023. Indeed, “a storage service necessarily requires a retrieval mechanism to be useful. To retrieve communications in storage, the RCS provider must display those communications in some way.” Crispin, 717 F. Supp. 2d at 990. The “distinction between public and nonpublic” availability is dispositive. Kerr, 72 Geo. Wash. L. Rev. at 1226. As to the public, no such retrieval mechanism is available here for the deleted content, nor is it publicly visible. Thus, Facebook is not an RCS here. 12