Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 13 of 32 At the time of enactment, Congress viewed ECS and RCS providers as mail/package delivery services. See Cong. Rsch. Serv., R46662, Social Media: Misinformation and Content Moderation Issues for Congress (2021), https://crsreports.congress.gov/product/pdf/R/R46662. This view failed to consider content moderation; mail/package delivery services have neither the ability nor the responsibility to search the contents of every package. Yet after disinformation on social media has fed a series of catastrophic harms, major providers have responded by taking on the de facto responsibility of content moderation. See id. “The question of how social media platforms can respect the freedom of expression rights of users while also protecting [users] from harm is one of the most pressing challenges of our time.” HRIA at 3. This Court is the first to consider the question of what happens after a provider acts on its content moderation responsibility. Is content deleted from the platform but retained by the provider in “backup storage?” 7 It is not. b. Deleted Content 7 “Deleted” means permanently unavailable to the user. The instant question concerns providerdeleted content, not user-deleted content. When a user permanently deletes content, it is generally no longer accessible or recoverable. See Can I see deleted messages in Messenger?, Facebook, https://www.facebook.com/help/messenger-app/540897679352879/?helpref=search (“No, you can’t see deleted messages or conversations. Deleting a message permanently removes it from your Chat list.”) (last visited Sept. 14, 2021); Delete or recover deleted Gmail messages, Google, https://support.google.com/mail/answer/7401 (“When you delete a message, it stays in your Trash for 30 days. After that time, it will be permanently deleted from your account and can’t be recovered.”) (last visited Sept. 14, 2021). Permanently deleted content is also unavailable to law enforcement, unless they obtained a formal preservation order prior to deletion. See Information for Law Enforcement Authorities, Facebook, https://www.facebook.com/safety/groups/law/guidelines/ (last visited Sept. 14, 2021). Given that permanently deleted content by the user appears not to be retained by providers, the question of whether user-deleted content is protected is likely a non-issue. 13