Case 1:20-mc-00036-JEB-ZMF Document 31 Filed 12/03/21 Page 12 of 14 of “electronic storage” held by an ECS. Like the stored communications at issue here, those referenced above are copies stored by the service provider for its own purposes, rather than for the benefit of, or at the choice of, the user. Cf. Hately, 917 F.3d at 796–97 (communications may be stored for purposes of backup protection whether stored for benefit of user or service provider) (citing Theofel, 359 F.3d at 1075). If Congress wished to protect these providerstored communications even after the user chose to delete them, it would make little sense for that protection to lapse when the provider made the decision to remove them, as occurred here. That would grant providers power inconsistent with the SCA’s goal to restrict their ability to disclose user communications. The Gambia rejoins that Facebook’s policy concerns are overblown and encourages this Court to follow cases that have interpreted “backup” in the context of undeleted content. See Pet. Resp. at 18–23. Even under those decisions, however, much of the content at issue here — namely, Facebook and Instagram posts — would appear to be stored “for purposes of backup protection” if the posts were undeleted. See Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 989 (C.D. Cal. 2010) (holding that Facebook posts are stored “for purposes of backup protection” under SCA by analogizing to electronic bulletin boards specifically discussed in SCA’s legislative history). The private Facebook messages and Instagram direct messages, conversely, pose a more difficult question, as courts are split on whether opened, undeleted messages fall within the definition of “electronic storage.” See Cheng v. Romo, 2013 WL 6814691, at *3 (D. Mass. Dec. 20, 2013) (collecting cases and noting disagreement); see also Crispin, 717 F. Supp. 2d at 987 (applying email-message precedent to Facebook messages). Although some courts hold that such messages are not stored “for purposes of backup protection,” see Sartori v. Schrodt, 424 F. Supp. 3d 1121, 1132–33 (N.D. Fl. 2019) (collecting 12