Case 1:20-mc-00036-JEB-ZMF Document 31 Filed 12/03/21 Page 13 of 14 cases), the Fourth and Ninth Circuits have disagreed. See Hately, 917 F.3d at 797 (concluding that opened emails stored by web-based email service were stored for purposes of backup protection); Theofel, 359 F.3d at 1077 (same as to non-web-based email service). And at least one court has suggested that even if the copies of these opened messages available to the users are not in backup storage, “copies of webmail or private messaging communications on [providers’] servers separate from the storage available to [the user] . . . would plainly be [stored] for backup purposes.” Crispin, 717 F. Supp. 2d at 987 n.46. It remains unsettled, therefore, whether the private messages would be stored for backup protection if they were undeleted. As the reader can readily discern, no clear thread ties these decisions together, nor is there any D.C. Circuit precedent to follow. More important, no case bears directly on the issue at hand, as all involve undeleted content, in contrast to the provider-deleted content here. That distinction matters. As evidenced by the House Report excerpted above, Congress may well have anticipated that copies of deleted content would be treated differently under the SCA from copies of content still available to — and within the control of — the user. That is especially so when the content has been removed by the provider. See supra, at 11–12. The Court therefore finds that the Gambia’s case citations provide no basis to reach a different outcome here. It consequently holds that private Facebook and Instagram pages and their associated communications that have been deleted by Facebook and are maintained on its servers to prevent their destruction are stored “for purposes of backup protection” under the plain meaning of those words. Those communications are therefore in “electronic storage” by an “electronic communication service,” and § 2702(a)(1) of the Stored Communications Act prohibits their disclosure to The Gambia. 13