any temporary, intermediate storage of a wire or electronic
communication incidental to the electronic transmission
thereof; and (B) any storage of such communication by an
electronic communication service for purposes of backup
protection of such communication.”92 Temporary storage
incidental to transmission and storage for purposes of backup
protection are not how personal computing devices keep
communications, but how third party network service
providers do—or at least did, in 1986.93
There is then the language of 18 U.S.C. § 2701(c)(1),
which provides that the prohibitory language of the Act “does
not apply with respect to conduct authorized . . . by the
person or entity providing a wire or electronic communication
service.” This makes sense when talking about third-party
access to network service providers’ own facilities. But were
the prohibitory language understood to apply to facilities
other than those of network service providers, the language of
the exception becomes problematic. As one district court has
explained, “[i]t would certainly seem odd that the provider of
a communication service could grant access to one’s home
provide electronic communications services to multiple
users.”).
92
18 U.S.C. § 2510(17).
93
See Kerr, A User’s Guide to the Stored Communications
Act, 72 Geo. Wash. L. Rev. at 1213-15 (“The [Act] . . .
freez[es] into the law the understandings of computer network
use as of 1986.”) (citing S. Rep. No. 99-541 at 2-3).
44
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