Case 1:20-mc-00036-JEB-ZMF Document 22 Filed 09/22/21 Page 14 of 32 “The ordinary meaning of the word ‘backup’ is ‘one that serves as a substitute or support.’” Jennings v. Jennings, 736 S.E.2d 242, 245 (S.C. 2012) (quoting Merriam-Webster Dictionary, http://www.merriam-webster.com/dictionary/backup). Congress’s conception of “‘backup’ necessarily presupposes the existence of another copy to which this [backup record] would serve as a substitute or support.” Id. Without an original, there is nothing to back up. Indeed “the lifespan of a backup is necessarily tied to that of the underlying message. Where the underlying message has expired . . . , any copy is no longer performing any backup function. An [ECS] that kept permanent copies of [deleted] messages could not fairly be described as ‘backing up’ those messages.” Gonzales v. Uber Techs., Inc., No. 17-cv-02264, 2018 WL 4616266, at *4 (N.D. Cal. Sept. 26, 2018) (quoting Theofel v. Farey-Jones 359 F.3d 1066, 1076 (9th Cir. 2004). Approximately three years ago, Facebook deleted the content in question as coordinated inauthentic behavior. See De-platforming Post; ECF No. 19 (Conf. Tr.) at 102–16. coordinated inauthentic behavior violates Facebook’s terms of service. And See Coordinated Inauthentic Behavior, Facebook (Dec. 6, 2018) https://about.fb.com/news/tag/coordinatedinauthentic-behavior/. Facebook heavily publicized this action and its finality. See Conf. Tr. at 110; De-platforming Post. 8 Indeed, Facebook has kept the content offline since then and “nobody [on Facebook] can view it.” Id. at 76. Because the original content is permanently off the platform, no backup copy can exist of it. See Gonzales, 2018 WL 4616266, at *4. 8 This decision touches a narrow category: content permanently deleted by the provider. See ante, at n.7. Undoubtedly, the instant content falls into that category given the passage of time since Facebook deleted the content, that it banned related users, and Facebook’s own words publicizing this as a final decision. See De-platforming Post. Not before this Court is what happens when content is in purgatory—i.e., de-platformed, but not yet subject to a decision about permanent deletion. See Conf. Tr. at 151. Ultimately, courts have a fact-intensive task of determining whether a provider has reached a final decision on de-platforming. 14