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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