Case 1:20-mc-00036-JEB-DAR Document 10 Filed 08/18/20 Page 18 of 29 content requested, Facebook is not acting as a facilitator of electronic communications as it typically does but is merely a preserver of information.25 Under the SCA, an ECS provider is prohibited from divulging communications “while in electronic storage by that service.” 18 U.S.C. § 2702(a)(1) (emphasis added). The SCA defines “electronic storage” in two ways. Specifically, the first type of storage, is defined as “any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof.” 18 U.S.C. § 2510(17)(a) (emphasis added). The second type of storage is defined as “any storage of such communication by an electronic communication service for purposes of backup protection of such communication.” 18 U.S.C. § 2510(17)(b) (emphasis added). Under section 2510(17)(a), courts have interpreted emails that sit in an e-mail user’s mailbox (on an ISP server) after transmission pending the user’s retrieval of the message from the mail server as being temporarily stored.26 In contrast, with respect to section 2510(17)(b), Courts have interpreted posts on bulletin boards, or in the context of Facebook, posts on a wall, 25 Removing Myanmar Military Officials From Facebook, Facebook (Aug. 28, 2018) (updated Dec. 18, 2018), https://about.fb.com/news/2018/08/removing-myanmar-officials/ (“We are preserving data, including content, on the accounts and Pages we have removed.”). 26 See, e.g., Theofel, 359 F.3d at 1072–73, 1075 (citing In re DoubleClick Inc. Privacy Litig., 154 F.Supp.2d 497, 511–12 (S.D.N.Y. 2001) (stating that section (A) is specifically targeted at communications temporarily stored by electronic communications services incident to their transmission—for example, when an email service stores a message until the addressee downloads it, and applying dictionary definitions of “temporary;” and “intermediate” to find that the subsection protects only electronic communications stored “for a limited time” in the “middle” of a transmission, “i.e., when an electronic communication service temporarily stores a communication while waiting to deliver it”)); United States v. Weaver, 636 F. Supp. 2d 769, 771 (C.D. Ill. 2009) (“Because the emails here have been opened, they are not in temporary, intermediate storage incidental to electronic transmission.”). 12