Case 1:20-mc-00036-JEB-ZMF Document 31 Filed 12/03/21 Page 8 of 14
purposes of backup protection” (subsection B). See 18 U.S.C. § 2510(17). To frame the
question narrowly, however, does little to aid its resolution. Indeed, it raises a matter of first
impression in both this district and elsewhere, at least as far as the Court and parties are aware.
Facebook argues that the content it possesses consists of copies of pages and messages
retained to protect the communications from destruction, which fits squarely within the plain
meaning of “for purposes of backup protection,” and that a contrary holding would undermine
the SCA’s purpose and have grave implications for electronic privacy. See Resp. Objections at
19–27. The Gambia, agreeing with the Magistrate Judge’s Order, rejoins that deleted content
stored on Facebook’s servers cannot be a “backup” when the original no longer exists, and that a
narrow definition of SCA-protected communications is in line with the Act’s intent to provide
only a limited set of protections. See Pet. Resp. at 18–23.
The SCA does not define “backup protection,” and so the Court turns, as it must, to the
plain meaning of the text. See Ross v. Blake, 578 U.S. 632, 638 (2016); Blackman v. District of
Columbia, 456 F.3d 167, 176 (D.C. Cir. 2006). “The most relevant definition of ‘backup’ is ‘a
copy of computer data.’” Hately, 917 F.3d at 791 (emphasis in original) (quoting Backup,
Merriam-Webster.com (last visited Feb. 26, 2019)). “Backup” is also defined as “[a] reserve or
substitute.” Backup, The American Heritage Dictionary of the English Language (3d ed. 1992)
(published six years after SCA’s passage). “Protection” is “the act of protecting,” which is
defined, in turn, as “keep[ing] from being damaged, attacked, stolen, or injured.” Protection, id.;
Protect, id. A communication is stored “for purposes of backup protection,” then, when it is a
“copy” or “reserve” held to prevent it being “damaged” or lost. See Hately, 917 F.3d at 791.
Copies of the deleted private accounts and pages, and the communications associated
with them, fall within this definition. When it deleted these pages and accounts, Facebook
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