Case 1:20-mc-00036-JEB-ZMF Document 31 Filed 12/03/21 Page 7 of 14 The Act prohibits both ECS and RCS providers from “knowingly divulg[ing] to any person or entity” certain communications. See 18 U.S.C. § 2702(a). ECS providers may not disclose any communication held “in electronic storage.” 18 U.S.C. § 2702(a)(1). “Electronic storage” is defined as: (A) any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof; and (B) any storage of such communication by an electronic communication service for purposes of backup protection of such communication[.] 18 U.S.C. § 2510(17). RCS providers, similarly, may not divulge communications maintained on their service “on behalf of . . . a subscriber or customer . . . solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents” for any other purpose. See 18 U.S.C. § 2702(a)(2)(A)–(B). Two distinctions are thus critical here in determining whether a communication is protected by the SCA’s disclosure prohibition: first, whether the possessing provider is an ECS or RCS (or neither), and, second, if the former, whether the communication is in “electronic storage.” Application to Provider-Deleted Private Communications In their briefing before this Court, the parties seem to agree both that Facebook is an ECS with respect to the content at issue (setting aside whether it may also be an RCS) and that this content does not fall within the “temporary storage” category (subsection A) of “electronic storage,” and they also do not contest that “electronic storage” includes two discrete types of protected communications. See Pet. Resp. at 19; Resp. Objections at 20; Hately v. Watts, 917 F.3d 770, 784 (4th Cir. 2019) (noting majority of courts have found that subsections (A) and (B) identify “two discrete types” of protected communications). Their squabble thus boils down to one basic question: whether the deleted private pages and communications are stored “for 7