Case 1:20-mc-00036-JEB-DAR Document 10 Filed 08/18/20 Page 19 of 29 to be stored for backup protection because they are not stored temporarily when posted, rather, the website is their final destination.27 Importantly, the classification of a communication can be fluid and may change based on the form it is in at a particular time, influencing the protections it is afforded under the SCA.28 In previous cases, courts have interpreted whether Facebook’s services fall within the SCA’s “electronic storage” requirement in the context of communications that are available to users on their platform and have not been removed by the provider. Here, Facebook has removed the information at issue for violating its policies and it is not available to the user to access. Thus, this information is neither in “temporary” storage or stored for “backup” protection. Accordingly, the content The Gambia has requested cannot be said to be in “electronic storage” by Facebook and is thus not subject to SCA protections.29 27 See, e.g., Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 988-89 (C.D. Cal. 2010) (“Because Facebook wall postings and MySpace comments, on the one hand, and bulletin postings on a website such as Konop's, on the other, cannot be considered to be in temporary, intermediate storage, the court interprets Konop as holding that the postings, once made, are stored for backup purposes.”) 28 See, e.g., Theofel, 359 F.3d at 1075 (holding that the same email temporarily stored prior to delivery could become a backup after it was opened if the provider retained the message if the user needed to redownload it). See generally Orin Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 GEO. WASH. L. REV. 1208, 1215 (2004) (“the key [to understanding a provider’s status under the SCA] is the provider’s role with respect to a particular copy of a particular communication, rather than the provider’s status in the abstract.”). 29 To the extent Facebook claims it is a “remote computing service” provider (“RCS”) storing the data, this argument is unsupported. A RCS is defined as “the provision to the public of computer storage or processing services by means of an electronic communications system.” 18 U.S.C. § 2711(2) (2018). Here, the data is not being stored for the public—it cannot be retrieved by the public or the user because it has been removed from the Facebook platform. See, e.g., Flagg v. City of Detroit, 252 F.R.D. 346, 36263 (E.D. Mich. 2008) (finding that SkyTel had become an RCS provider because it maintained a database of text messages for its client and served in the capacity of a “virtual filing cabinet.”). 13