Full opinion text
ORDER GRANTING PLAINTIFF’S MOTION FOR REVIEW OF MAGISTRATE JUDGE’S DECISION RE PLAINTIFF’S MOTION TO QUASH SUBPOENA MARGARET M. MORROW, District Judge. I. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Buckley Crispin filed this action on December 29, 2009 against Christian Audigier, Christian Audigier, Inc. (“CAI”), and their various sublicensees. On March 19, 2010, Crispin filed a first amended complaint. Crispin alleges that between November 2005 and January 2006, he granted Audigier and CAI an oral license to use certain of his works of art in a limited manner in connection with the manufacture of certain types of garments. The agreement purportedly required Audigier and CAI to pay a specified sum for the right to reproduce each work of art on street-wear apparel and also required that they include Crispin’s logo on each garment. Crispin alleges that Audigier and CAI have not only failed to include his logo on a substantial quantity of apparel bearing his artwork, but at times they attributed the artwork to another artist or to Audigier himself. Crispin alleges that Audigier and CAI also violated his rights by sublicensing his artwork without obtaining his consent. He asserts that the artwork has now been used on jewelry, watches, shoes, pet accessories, luggage, sunglasses, swimwear, denim, wine bottles, and a variety of other products that are purportedly outside the scope of the limited oral license. Crispin pleads five causes of action: (1) breach of contract against CAI and Audigier; (2) copyright infringement against all defendants; (3) breach of the covenant of good faith and fair dealing against Audigier and CAI; (4) declaratory relief regarding the works of art against all defendants; and (5) constructive trust against all defendants. On February 10, 2010, defendants served subpoenas duces tecum on four third-party businesses and social networking websites: Black Market Art Company, Facebook, Media Temple, Inc, and MySpace, Inc. The subpoenas directed to the latter three businesses sought Crispin’s basic subscriber information, as well as all communications between Crispin and tattoo artist Bryan Callan, and all communications that referred or related to Audigier, CAI, the Ed Hardy brand, or any of the sublicensee defendants. Audigier and CAI contend that this information is relevant in determining the nature and terms of the agreement, if any, into which Crispin and Audigier entered. The subpoena directed to Black Market Art Company sought sales information for all apparel that incorporated artwork created by Crispin and that was sold through Black Market’s website. Audigier and CAI contend this information is relevant to the measure of damages should Crispin prevail on the merits. On February 24, 2010, Crispin filed an ex parte motion to quash the subpoenas that was heard by Judge John E. McDermott. Crispin raised three arguments regarding the subpoenas served on Media Temple, Facebook, and MySpace: (1) that they sought electronic communications that third-party Internet Service Providers (“ISPs”) are prohibited from disclosing under the Stored Communications Act (“SCA”), 18 U.S.C. § 2701(a)(1); (2) that the subpoenas were otherwise overbroad in that they required disclosure of information protected by the marital privilege, the attorney-client privilege, the trade secret doctrine, and Crispin’s privacy rights; and (3) that the subpoenas sought irrelevant information because copyright ownership cannot be transferred without a writing nor may parties enter into a sublicense without a writing and communications revealing Crispin’s understanding of his arrangement with CAI and Audigier would not change the fact that the agreement was not reduced to writing. Judge McDermott rejected each of Crispin’s arguments. With respect to the argument that the information would be irrelevant because the Copyright Act does not permit an oral transfer of rights, Judge McDermott noted that a nonexclusive license is not a transfer of ownership and does not require a writing. He held that, because the nature of the transfer is the issue in this case and because the subpoenas seek information regarding that subject, the relevance objection was not well taken. Judge McDermott concluded that the SCA did not apply because that Act reaches only electronic communication service (“ECS”) providers and third-party businesses are not ECS providers as defined in the statute. Judge McDermott also con-eluded that the SCA prohibits only the voluntary disclosure of information by ECS providers, not disclosure compelled by subpoena. Finally, Judge McDermott found that the SCA prohibits only the disclosure of communications held in “electronic storage” by the ECS provider, and that the materials were not in electronic storage as that term is defined in the statute. Judge McDermott rejected Crispin’s generalized overbreadth and privacy arguments because he provided “no declaration or basis for these assertions, [did not] explain[ ] or support[ ] his trade secret argument, and the subpoenas expressly exclude[d] communications with Crispin’s attorney.” Judge McDermott held, however, that the request for all communications between Crispin and Callan, regardless of the subject matter, was overbroad; he noted that such discovery might be an effort to gain information related to a separate lawsuit Callan filed against Audigier. Crispin argued that the Black Market subpoena sought information regarding artwork sold through Black Market that is not the subject of this lawsuit. Judge McDermott credited Audigier’s and CAI’s argument that the sale of products through Black Market that are designed by Crispin but do not bear Audigier’s brand would help resolve whether and to what extent sales of Audigier products bearing Crispin designs are driven by Audigier’s brand or Crispin’s design. He quashed two requests, which collectively sought all communications regarding Crispin or his artwork, as overbroad and not tied to claims or defenses in the lawsuit. Judge McDermott requested additional briefing regarding Black Market’s payments to Crispin, noting Crispin’s interest in not revealing payments he received to the general public. Judge McDermott also noted that it was not immediately obvious why Crispin’s profit was relevant. Plaintiff has timely moved for reconsideration of Judge McDermott’s decision insofar as it concludes that Media Temple, Facebook, and MySpace are not subject to the SCA. II. DISCUSSION A. Legal Standard For Review Of Magistrate Judge’s Order A magistrate judge has authority to hear matters that are not dispositive of a claim or defense. See Fed.R.CivProc. 72. These include discovery motions. See Bhan v. NME Hospitals, Inc., 929 F.2d 1404, 1414 (9th Cir.1991) (“Nondispositive issues include discovery sanctions”); Hoar v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir.1990) (“Matters concerning discovery generally are considered ‘nondispositive’ of the litigation”). Under Rule 72(a), a party may serve and file objections to a magistrate judge’s order that concerns a nondispositive pretrial matter “[wjithin 10 days after being served with a copy of the magistrate judge’s order.” Fed.R.CivProc. 72(a); see CA CD L.R. 72-2.1 (“Any party objecting under F.R.Civ.P. 72(a) to a Magistrate Judge’s ruling on a pretrial matter not dispositive of a claim or defense must file a motion for review ... within ten (10) days of an oral ruling which the Magistrate Judge indicates will not be followed by a written ruling, or within ten (10) days of service of a written ruling”). Normally, a magistrate judge’s order can be reversed by the district court only if it is “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R.CivProc. 72(a); Bhan, 929 F.2d at 1414. The clearly erroneous standard, which applies to a magistrate judge’s findings of fact, is “significantly deferential, requiring ‘a definite and firm conviction that a mistake has been committed.’ ” Concrete Pipe & Prods, v. Constr. Laborers Pension Trust, 508 U.S. 602, 623, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993); see Security Farms v. International Brotherhood of Teamsters, 124 F.3d 999, 1014 (9th Cir.1997); see also Grimes v. City and County of San Francisco, 951 F.2d 236, 240 (9th Cir.1991) (holding that discovery sanctions are non-dispositive pretrial matters that are reviewed for clear error under Rule 72(a)). By contrast, “[t]he ‘contrary to lav/ standard ... permits independent review of purely legal determinations by the magistrate judge.” F.D.I.C. v. Fidelity & Deposit Co. of Md., 196 F.R.D. 375, 378 (S.D.Cal.2000) (citing Haines v. Liggett Group, Inc., 975 F.2d 81, 91 (3d Cir.1992) (“[T]he phrase ‘contrary to lav/ indicates plenary review as to matters of law”)); see Med. Imaging Centers of America, Inc. v. Lichtenstein, 917 F.Supp. 717, 719 (S.D.Cal.1996) (“Section 636(b)(1) ... has been interpreted to provide for de novo review by the district court on issues of law”). “Acting as an appellate court, this Court has the power to ‘affirm, modify, vacate, set aside or reverse’ the magistrate judge’s order and ‘may remand the cause and direct the entry of such appropriate judgment, decree or order, or require such further proceedings to be has as may be just under the circumstances.’ ” United States v. Ramirez, No. CR F 08-0239 LJO, 2008 WL 5397497, *2 (E.D.Cal. Dec. 24, 2008) (quoting 28 U.S.C. § 2106). See also Wolf v. Geico Insurance Co., 682 F.Supp.2d 197, 198 (D.R.I.2010) (vacating a magistrate judge’s order staying discovery on an insurance claim pending resolution of a separate breach of contract claim and remanding to the magistrate judge to weigh the risk of prejudice to the insurer posed by permitting discovery against the possible efficiencies to be gained). B. The Stored Communications Act Congress passed the Stored Communications Act in 1986 as part of the Electronic Communications Privacy Act. “The SCA was enacted because the advent of the Internet presented a host of potential privacy breaches that the Fourth Amendment does not address.” Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 900 (9th Cir.2008) (citing Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L.Rev. 1208, 1209-13 (2004)). The SCA prevents “providers” of communication services from divulging private communications to certain entities and individuals. Kerr, supra, at 1213. It “creates a set of Fourth Amendment-like privacy protections by statute, regulating the relationship between government investigators and service providers in possession of users’ private information.” Id. at 1212. First, the statute limits the government’s right to compel providers to disclose information in their possession about their customers and subscribers. 18 U.S.C. § 2703. “Although the Fourth Amendment may require no more than a subpoena to obtain e-mails, the statute confers greater privacy protection.” Kerr, supra, at 1212-13. Second, the statute limits the right of an Internet Service Provider (“ISP”) to disclose information about customers and subscribers to the government voluntarily. 18 U.S.C. § 2702. The statute distinguishes between a remote computing service (“RCS”) provider and an electronic communication service (“ECS”) provider, establishing different standards of care for each. Quon, 529 F.3d at 900. The SCA defines an ECS provider as “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15). With certain enumerated exceptions, it prohibits an ECS provider from “knowingly divulging] to any person or entity the contents of a communication while in electronic storage by that service.” Id., §§ 2702(a)(1), (b). The SCA defines RCS as “the provision to the public of computer storage or processing services by means of an electronic communications system,” id., § 2711(2), and in turn defines an electronic communications system (as opposed to an electronic communication service) as “any wire, radio, electromagnetic, photooptical or photoelectronic facilities for the transmission of wire or electronic communications, and any computer facilities or related electronic equipment for the electronic storage of such communications,” id., § 2510(14). The SCA prohibits an RCS provider from “knowingly divulg[ing] to any person or entity the contents of any communication which is carried or maintained on that service.” Id., § 2702(a)(2). “[A] person who does not provide an electronic communication service [or a remote communication service] can disclose or use with impunity the contents of an electronic communication unlawfully obtained from electronic storage.” Wesley College v. Pitts, 974 F.Supp. 375, 389 (D.Del.1997) (citing 18 U.S.C. § 2702(a)). An ECS provider is prohibited from divulging only “the contents of a communication while in electronic storage by that service.” 18 U.S.C. § 2702(a)(1). “Electronic storage” is “(A) 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.” Id., § 2510(17). By contrast, an RCS provider may not divulge the content of any communication received by electronic transmission that is carried or maintained on its service for a customer or subscriber “solely for the purpose of providing storage or computer processing services to [the] subscriber or customer, if the provider is not authorized to access the contents of [the] communications for purposes of providing ... services other than storage or computer processing.” Id., § 2702(a)(2). C. Whether a Party May Move to Quash a Subpoena Directed to a Third Party Under the SCA Defendants argued to Judge McDermott, and again in this court, that Crispin cannot assert the rights of Media Temple, Facebook, and MySpace, none of whom moved to quash the subpoenas directed to them. Judge McDermott did not address this issue in his decision. “Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.” 9A Charles Wright & Arthur Miller, Federal Practice & Procedure, § 2459 (3d ed. 2008). See also In re REMEC, Inc. Securities Litigation, Civil No. 04cv1948 JLS (AJB), 2008 WL 2282647, *1 (S.D.Cal. May 30, 2008) (“As a general proposition, a party lacks standing under Federal Rules of Civil Procedure Rule 45(c)(3) to challenge a subpoena issued to a non-party unless the party claims a personal right or privilege with respect to the documents requested in the subpoena”); Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D.Cal.2005) (“A party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash”); Schmulovich v. 1161 Rt. 9 LLC, Civil Action No. 07-597(FLW), 2007 WL 2362598, *2 (D.N.J. Aug. 15, 2007) (“Personal rights claimed with respect to bank account records give a party sufficient standing to challenge a third party subpoena served upon financial institutions holding such information”); Richards v. Convergys Corp., Nos. 2:05-CV-00790-DAK, 2:05-CV-00812 DAK, 2007 WL 474012, *1 (D.Utah Feb. 7, 2007) (“[A] party has a personal right with respect to information contained in his personnel files sufficient to confer standing to move to quash a subpoena for his employment records served on a third party”); Arias-Zeballos v. Tan, No. 06 Civ. 1268(GEL)(KN), 2007 WL 210112, *1 (S.D.N.Y. Jan. 25, 2007) (“individuals, whose banking records are subpoenaed, have a privacy interest in their personal financial affairs that gives them standing to move to quash a subpoena served on a non-party financial institution”). At least two district courts have concluded that individuals have standing to move to quash a subpoena seeking personal information protected by the SCA. In J.T. Shannon Lumber Co., Inc. v. Gilco Limber, Inc., Civil Action No. 2:07-CV-119, 2008 WL 3833216 (N.D.Miss. Aug. 14, 2008), the district court found that “because the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider.” Id. at *1. The court finds J.T. Shannon Lumber persuasive. Specifically, it concludes that an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records. As with bank and employment records, this personal right is sufficient to confer standing to move to quash a subpoena seeking such information. The court therefore finds that Crispin had standing to bring a motion to quash. See also Hone v. Presidente U.S.A. Inc., No. 5:08-mc-80071-JF, 2008 U.S. Dist. LEXIS 55722, *4 (N.D.Cal. July 21, 2008) (quashing, on plaintiffs motion, a subpoena delivered to Yahoo that sought emails from plaintiffs email account because it complying with the subpoena would result in an “impermissible disclosure of information”). Defendants also argue that the SCA explicitly permits the service of subpoenas duces tecum. Judge McDermott concluded that the following statutory provision permitted disclosure pursuant to subpoena: “No cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, agents, or other specified persons for providing information, facilities, or assistance in accordance with the terms of a court order, warrant, subpoena, statutory authorization, or certification under this chapter.” 18 U.S.C. § 2703(e). The statute establishes a complex scheme pursuant to which a governmental entity can, after fulfilling certain procedural and notice requirements, obtain information from an RCS provider via administrative subpoena or grand jury or trial subpoena. 18 U.S.C. § 2703(b). It permits a governmental entity to obtain information from an ECS provider only pursuant to criminal warrant if the communication has been held by the provider for fewer than 180 days. In all other cases, the governmental entity can obtain information from an ECS provider using the subpoena procedures set forth in § 2703(b). 18 U.S.C. § 2703(a). The statute does not mention service of a civil subpoena duces tecum. Were it accepted, defendants’ argument would lead to the anomalous result that, in order to obtain information protected by the SCA, a governmental entity would have to comply with the Federal Rules of Criminal Procedure governing warrants, or for communications more than 180 days old, statutory procedures requiring notice to the subscriber before an administrative subpoena could issue, while a civil litigant could procure information simply by serving a subpoena duces tecum. Such an inference cannot be drawn on the basis of statutory silence alone. Cf. United States v. Brown, 333 U.S. 18, 27, 68 S.Ct. 376, 92 L.Ed. 442 (1948) (“No rule of construction necessitates our acceptance of an interpretation resulting in patently absurd consequences”). The interpretation defendants advocate, moreover, overlooks the overall import and structure of the statute, which is at heart a broad prohibition on disclosure with limited and carefully regulated exceptions. See Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. A court must therefore interpret the statute as a symmetrical and coherent regulatory scheme and fit, if possible, all parts into an harmonious whole” (internal citations and quotations omitted)).- More fundamentally, it ignores the last three words of § 2703(e). That section states that no civil liability accrues where a provider acts pursuant to a “subpoena ... under this chapter.” 18 U.S.C. § 2703(e) (emphasis supplied). See General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 582, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004) (“[Sjtatutory language must be read in context since a phrase gathers meaning from the words around it”). This phrase clearly references subpoenas that governmental entities are authorized under § 2703(b), not civil subpoenas duces tecum. As Robison notes: “Among the Act’s most significant, although unstated, privacy protections is the ability to prevent a third party from using a subpoena in a civil case to get a user’s stored communications or data directly from an ECS or RCS provider. Courts interpret the absence of a provision in the Act for compelled third-party disclosure to be an intentional omission reflecting Congress’s desire to protect users’ data, in the possession of a third-party provider, from the reach of private litigants. Without this blanket immunity from subpoena in civil cases, a user’s entire portfolio of stored communications and data might be fair game for an adversary.” Robison, supra, at 1208-09 (footnote omitted). See also Viacom International Inc. v. Youtube Inc., 253 F.R.D. 256, 264 (S.D.N.Y.2008) (holding that the SCA prohibits disclosure of information pursuant to a civil subpoena because the Act “contains no exception for disclosure of such communications pursuant to civil discovery requests”); In re Subpoena Duces Tecum to AOL, LLC, 550 F.Supp.2d 606, 611 (E.D.Va.2008) (“Applying the clear and unambiguous language of § 2702 to this case, AOL, a corporation that provides electronic communication services to the public, may not divulge the contents of the Rigsbys’ electronic communications to State Farm because the statutory language of the [SCA] does not include an exception for the disclosure of electronic communications pursuant to civil discovery subpoenas”); O’Grady v. Superior Court, 139 Cal. App.4th 1423, 44 Cal.Rptr.3d 72 (2006) (emphasizing the substantial burden and expense that would be imposed on internet service providers if they were required to respond to every civil discovery subpoena issued in a civil lawsuit, noting that ISPs’ routine compliance with such subpoenas might discourage users from using new media, declining to create an exception for civil discovery, and concluding that subpoenas were unenforceable under the SCA). In short, given the fact that § 2703(e)’s reference to subpoena is modified by the phrase “under this chapter,” given the overall structure and purpose of the statute, as well as § 2703(e)’s place in it, and given the supporting case law, the court concludes that § 2703(e) is not susceptible of the interpretation defendants propose, and that plaintiff has standing to move to quash the subpoenas that were issued under the SCA. D. Whether the Subpoenas Should Be Quashed under the SCA The parties provided only minimal facts regarding the three third-party entities that were subpoenaed in the papers filed with Judge McDermott. In his portion of the joint stipulation, plaintiff, citing only the home web page of each company, stated: “Media Temple, Inc. is a company which provides web hosting services, inter alia, webmail and website content features. Facebook and MySpace, Inc., are companies which provide social networking websites that allow users to send and receive messages, through posting on user-created ‘profile pages’ or through private messaging services.” Citing only the user-generated source, Wikipedia, defendant elaborated that “webmail is a service that allows users to view email messages through a web browser while the messages remain on Media Temple’s servers.” Defendant also noted that Facebook’s user-created profile page is known as the Facebook “wall,” “a space on each user’s profile page that allows Mends to post messages for the user to see.” These messages, defendant stated “can be viewed by anyone with access to the user’s profile page, and are stored by Facebook so that they can be displayed on the Facebook website, not as an incident to their transmission to another place.” Similarly, defendant noted, MySpace has a profile page with a “comments” feature that is identical to the Facebook wall. Although some courts have considered the SCA’s application to certain types of providers, none appears to have addressed whether social-networking sites fall within the ambit of the statute. In Quon, the Ninth Circuit considered whether a party-providing text-messaging pager services was an ECS provider or an RCS provider. The Ninth Circuit concluded that defendant provided a “service” that enabled the plaintiff and others to “send or receive ... electronic communications,” namely text messages, i.e., that it was an ECS. Quon, 529 F.3d at 901. By contrast, an RCS provider must provide “computer storage or processing services.” Although the pager service archived text messages on its server, and was therefore storing the messages, Congress contemplated that an ECS provider would provide some storage as well. Id. (citing 18 U.S.C. § 2510(17), which states that an ECS provider may provide storage of communications for backup purposes and describes a temporary, intermediate storage of communications incidental to the electronic transmission thereof). The Ninth Circuit concluded that the text-messaging pager service “served as a conduit for the transmission of electronic communications from one user to another, and stored those communications ‘as a “backup.” ’ ” and as a consequence, held that it constituted an ECS provider. Id. at 902 (quoting Theofel v. Farey-Jones, 359 F.3d 1066, 1070 (9th Cir.2004)). Quon also found support in the Ninth Circuit’s prior decision in Theofel, in which the court concluded that a “provider of email services” was “undisputedly an ECS.” Id. at 902 (citing Theofel, 359 F.3d at 1075). See also Warshak v. United States, 532 F.3d 521, 523 (6th Cir.2008) (holding that the statutory definition of an ECS provider includes “basic e-mail services,” citing Patricia L. Bellia et al., Cyberlaw: Problems of Policy and Jurisprudence in the Information Age 584 (2d ed. 2004)), while the statutory definition of an RCS provider includes provision of “longer-term storage,” citing Kerr, supra, at 1216); Konop, 302 F.3d at 879 (concluding, based on the SCA’s legislative history, that “Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bulletin boards”); S. Rep. No. 99-541 at 14, 1986 U.S.C.C.A.N. 3555, 3568 (“Existing telephone companies and electronic mail companies are providers of electronic communications services”); United States v. Weaver, 636 F.Supp.2d 769, 770 (C.D.Ill.2009) (concluding that Microsoft, which provided email service through the Hotmail website, was both an ECS provider and an RCS provider); Jayne v. Sprint PCS, No. CIV S-07-2522 LKK GGH P, 2009 WL 426117, *6 (E.D.Cal. Feb. 20, 2009) (concluding that Sprint, a cell phone service provider, was an ECS provider); Becker v. Toca, Civil Action No. 07-7202, 2008 WL 4443050, *4 (E.D.La. Sept. 26, 2008) (noting that “[c]ourts have interpreted the statute to apply primarily to telephone companies, internet or e-mail service providers, and bulletin board services,” but declining to dismiss a claim under the SCA that alleged defendant sent a virus to plaintiffs computers that infected them because it was unclear “to what extent the [virus] may have accessed or retrieved information stored with an electronic communication service provider,” since the fact that plaintiff used personal and office computers in his business might qualify him as an ECS provider); Kaufman v. Nest Seekers, LLC, No. 05 CV 6782(GBD), 2006 WL 2807177, *6 (S.D.N.Y. Sept. 26, 2006) (“An on-line business which provides its customers, as part of its commercial offerings, the means by which the customers may engage in private electronic communications with third-parties may constitute a facility through which electronic communication service is provided”); Freedman v. America Online, Inc., 325 F.Supp.2d 638, 644 n. 4 (E.D.Va.2004) (concluding that America Online was an ECS provider). Judge McDermott cited Quon for the proposition that a company is an ECS provider if it “served as a conduit for the transmission of electronic communications from one user to another, and stored those communications as a backup for the user.” Applying this definition, Judge McDermott held that for Facebook, MySpace, or Media Temple to be considered ECS providers, they had to “provide internet access or operate as conduits for the transmission of data from one location to another.” Because the websites’ messaging services are used solely for public display, he found that they did not meet this definition. The court concludes that, although largely sound, Judge McDermott’s reading of Quon and the SCA is contrary to law in certain respects. First, Judge McDermott interpreted the descriptive language in Quon as a broadly applicable definition of an ECS provider rather than as a description of a particular type of provider, i.e., a text-messaging pager service. Treating Quon’s formulation as the exclusive definition of ECS provider, however, improperly limits the reach of the statute, which extends to “any service which provides to users thereof the ability to send or receive wire or electronic communications.” 18 U.S.C. § 2510(15) (emphasis supplied). Judge McDermott also found that Face-book, MySpace, or Media Temple engaged in public messaging only and concluded that this fact was dispositive. In reaching this conclusion, Judge McDermott apparently misconstrued the information plaintiff provided concerning the nature of the services the third-party companies provided. It is clear, for instance, that Media Temple provides “webmail,” which is a “service that allows users to view email messages.” In addition plaintiff stated that both Facebook and MySpace provided “private messaging services.” Recognizing that all three sites provide private messaging or email services, the court is compelled to apply the voluminous case law cited above that establishes that such services constitute ECS. Moreover, the information the parties gave Judge McDermott establishes that Facebook wall postings and the MySpace comments are not strictly “public,” but are accessible only to those users plaintiff selects. The court therefore finds relevant, if not controlling, the authority regarding private electronic bulletin board services (“BBS”). “Computer bulletin boards generally offer both private electronic mail service and newsgroups. The latter is essentially email directed to the community at large, rather than a private recipient.” MTV Networks v. Curry, 867 F.Supp. 202, 204 n. 3 (S.D.N.Y.1994). The term “computer bulletin board” evokes the tradition- al cork-and-pin bulletin board on which people post messages, advertisements, or community news. United States v. Riggs, 739 F.Supp. 414, 417 n. 4 (N.D.Ill.1990) (“A computer bulletin board system is a computer program that simulates an actual bulletin board by allowing computer users who access a particular computer to post messages, read existing messages, and delete messages”). Court precedent and legislative history establish that the SCA’s definition of an ECS provider was intended to reach a private BBS. United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir.2003) (“Thus, the SCA clearly applies, for example, to information stored with a phone company, Internet Service Provider (ISP), or electronic bulletin board system (BBS)”); Konop, 302 F.3d at 875 (“The legislative history of the [SCA] suggests that Congress wanted to protect electronic communications that are configured to be private, such as email and private electronic bulletin boards”); Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457, 462 (5th Cir.1994) (holding that the SCA “clearly applies” to the seizing of information on a BBS); Becker, 2008 WL 4443050 at *4 (“Courts have interpreted the statute to apply primarily to telephone companies, internet or e-mail service providers, and bulletin board services”); Kaufman, 2006 WL 2807177 at *5 (“An electronic bulletin board fits within the definition of an electronic communication service provider”); Inventory Locator Service, LLC v. Parts-base, Inc., No. 02-2695 MA/V, 2005 WL 2179185, *24 (W.D.Tenn. Sept. 6, 2005) (finding that the SCA not only applied to entities that provide gateway access to the Internet, but also applied to a password-protected website containing an electronic bulletin board and a web-based forum where parties could communicate). Unquestionably, the case law, and in particular the Ninth Circuit’s decision in Konop, require that the BBS be restricted in some fashion; a completely public BBS does not merit protection under the SCA. Kaufman, at *5 (“Only electronic bulletin boards which are not readily accessible to the public are protected under the Act”); S. Rep. No. 99-541, at 36, 1986 U.S.C.C.A.N. 3555, 3590 (“The bill does not for example hinder the development or use of ‘electronic bulletin boards’ or other similar services where the availability of information about the service, and the readily accessible nature of the service are widely known and the service does not require any special access code or warning to indicate that the information is private. To access a communication in such a public system is not a violation of the Act, since the general public has been ‘authorized’ to do so by the facility provider”). The information provided to Judge McDermott and this court, however, makes clear that Facebook permits wall messages to “be viewed by anyone with access to the user’s profile page”-, MySpace provides the “same” functionality. As a consequence, there is no basis for distinguishing between a restricted-access BBS and a user’s Facebook wall or MySpace comments. There similarly is no basis for distinguishing between Media Temple’s webmail and Facebook’s and MySpace’s private messaging, on the one hand, and traditional web-based email on the other. As a consequence, the court concludes that each of Media Temple, Facebook, and MySpace is an ECS provider. That the three entities are ECS providers does not end the court’s inquiry, however. The court must also determine whether the information sought by the subpoenas — private messages and postings — constitute electronic storage within the meaning of the statute. As will be seen, this inquiry necessitates that the court consider whether at some point the three entities act as RCS providers with respect to certain stored communications. As noted, the statute provides two definitions of electronic storage. One definition is found in § 2510(17)(A). See 18 U.S.C. § 2510(17)(A) (“any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof’). As respects this definition, “[s]everal courts have held that [the] subsection ... covers e-mail messages stored on an ISP’s server pending delivery to the recipient.” Theofel, 359 F.3d at 1075 (citing In re DoubleClick Inc. Privacy Litigation, 154 F.Supp.2d 497, 511-12 (S.D.N.Y.2001) (holding that “it appears that the section 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”)); Fraser v. Nationwide Mutual Insurance Co., 135 F.Supp.2d 623, 635-36 (E.D.Pa.2001) (holding that subsection (A) “covers a message that is stored in intermediate storage temporarily, after the message is sent by the sender, but before it is retrieved by the intended recipient”), aff d in part and vacated in part on other grounds, 352 F.3d 107, 114 (3d Cir.2003) (concurring that “post-transmission” storage is not covered by subsection (A)); Steve Jackson Games, 36 F.3d at 461-62 (private messages stored on a bulletin board pending delivery are covered by subsection (A)). See also United States v. Councilman, 418 F.3d 67, 80 (1st Cir.2005) (en banc) (“The first category ... refers to temporary storage, such as when a message sits in an e-mail user’s mailbox after transmission but before the user has retrieved the message from the mail server”); Weaver, 636 F.Supp.2d at 771 (“Because the emails here have been opened, they are not in temporary, intermediate storage incidental to electronic transmission”). The Ninth Circuit agrees that “subsection (A) applies only to messages in ‘temporary, intermediate storage,’ ” and has “limited that subsection’s coverage to messages not yet delivered to their intended recipient.” Theofel, 359 F.3d at 1075. A second definition of “electronic storage” is found in § 2510(17)(B). See 18 U.S.C. § 2510(17)(B) (“any storage of such communication by an electronic communication service for purposes of backup protection of such communication”). The central interpretive difficulty with respect to this definition is whether the communication was stored for “purposes of backup protection,” a term that is not defined. Fraser, 352 F.3d at 114 (noting that the term “backup protection” is not defined in the statute or in the legislative history). In Theofel, assessing the storage of a message on an ISP’s server after delivery, the court noted that an “obvious purpose ... is to provide a second copy of the message in the event that the user needs to download it again — if, for example, the message is accidentally erased from the user’s own computer.” Because this was a purpose of storage, the court concluded that storage served as a “backup” for the user. Theofel, 359 F.3d at 1075. In Quon, the Ninth Circuit was confronted with a vague evidentiary record, which reflected that the pager messages were “archived” on the server, but did not explain what was meant by that term. The pager service argued that its “permanent retention” of the text messages could not have been for “backup purposes” but must have been for “storage purposes.” The Ninth Circuit held that “archived” did not necessarily connote permanent storage, and that, under Theofel, messages stored on an ECS provider’s server after delivery were for “backup protection.” As a consequence, it held that plaintiff was entitled to judgment as a matter of law against the pager service. Quon, 529 F.3d at 902-03. In response to a hypothetical argument made by the United States, the Theofel court reserved decision on a question relevant to this case: “A remote computing service might be the only place a user stores his messages; in that case, the messages are not stored for backup purposes.” Theofel, 359 F.3d at 1077. At least one district court has distinguished Quon and Theofel, relying in part on this language. The Weaver court noted that Theofel “relies on the assumption that users download emails from an ISP’s server to their own computers.” Weaver, 636 F.Supp.2d at 772. The Weaver court confronted a situation not previously considered by the Ninth Circuit. It noted that, in contrast to the non-web-based platform in Theofel, Microsoft’s Hotmail email service was “ ‘web-based’ and ‘remote.’ ” Id. (quoting Fischer v. Mt. Olive Lutheran Church, Inc., 207 F.Supp.2d 914, 917 (W.D.Wis.2002)). “Hotmail users can access their email over the web from any computer, and they do not automatically download their messages to their own computers as non-web-based email service users do.” Id. (citing James X. Dempsey, Digital Search & Seizure: Standards for Government Access to Communications and Associated Data, 970 PLI/PAT 687, 707 (2009)). “[I]f Hotmail users save a message, they generally leave it on the Hotmail server and return to Hotmail via the web to access it on subsequent occasions.” Id. “Users of web-based email systems, such as Hotmail, default to saving their messages only on the remote system. A Hotmail user can opt to connect an email program, such as Microsoft Outlook, to his or her Hotmail account and through it download messages onto a personal computer, but that is not the default method of using Hotmail. Thus, unless a Hotmail user varies from default use, the remote computing service is the only place he or she stores messages, and Microsoft is not storing that user’s opened messages for backup purposes.” Id. (footnote omitted). Given this fact, the Weaver court concluded that as soon as a user opened an email message and maintained that message on the Hotmail website, Microsoft was maintaining the message “solely for the purpose of providing storage or computer processing services to such subscriber or customer.” Weaver, 636 F.Supp.2d at 772 (quoting 18 U.S.C. § 2703(b)(2)). Stated differently, at that point Hotmail ceased to be an ECS provider and became an RCS provider, providing remote storage service for the email. Weaver found that such an interpretation was supported by the SCA’s legislative history. It cited the House Report, which stated: “Sometimes the addressee, having requested and received a message, chooses to leave it in storage on the service for re-access at a later time. The Committee intends that, in leaving the message in storage, the addressee should be considered the subscriber or user from whom the system received the communication for storage, and that such communication should continue to be covered by section 2702(a)(2) [governing RCS providers].” H.R. Rep. No. 99-647, at 65 (1986). In addition to the Weaver court, another district court found that an ECS provider became an RCS provider after a communication had been read and stored. In Flagg v. City of Detroit, 252 F.R.D. 346, 362-63 (E.D.Mich.2008), the City of Detroit had previously used text messaging services provided by SkyTel, an ECS provider. By the time communications were accessed, however, SkyTel had ceased to be an active provider of text messaging services, although it continued to maintain a database of text messages sent. The district court found that it had become an RCS provider because it served in the capacity of a “virtual filing cabinet” for the City. Id. Courts outside the Ninth Circuit and commentators have accused the Ninth Circuit of relying “on a unitary approach, under which service providers contract with their customers to provide either an ECS or an RCS, but not both.” Flagg, 252 F.R.D. at 362. It is true that the Ninth Circuit in Quon reversed a district court finding that a single provider provided both ECS and RCS services to the same customer. See Quon v. Arch Wireless Operating Co., Inc., 445 F.Supp.2d 1116, 1137 (C.D.Cal.2006). Nonetheless, the court is puzzled by the criticism of Theofel as “unitary,” and speculates that there may be a misapprehension of that opinion due to a quirk in its issuance. The Ninth Circuit first issued an opinion in Theofel in August 2003. Theofel v. FareyJones, 341 F.3d 978 (9th Cir.2003). In February 2004, the Ninth Circuit issued an order amending that opinion, which added the following language: “[N]ot all remote computing services are also electronic communications services .... The government notes that remote computing services and electronic communications services are ‘often the same entities,’ but ‘often’ is not good enough to make the government’s point. Even as to remote computing services that are also electronic communications services, not all storage covered by sections 2702(a)(2)(B) [] and 2703(b)(2)(B) [] is also covered by section 2510(17)(B).[] A remote computing service might be the only place a user stores his messages; in that case, the messages are not stored for backup purposes.” Theofel, 359 F.3d at 1076-77. The passage does not state that an entity cannot be both an RCS provider and ECS provider. Rather, the Theofel court held no more than that the entity whose conduct was at issue in that case was not both an ECS and RCS provider; this fact rendered the government’s argument that entities often are both irrelevant. The Ninth Circuit’s statement that not all RCS providers are also ECS providers by implication suggests that some are. Its reference to that “remote computing services that are also electronic communications services” confirms that it believed an entity could be both an ECS and an RCS provider. Similarly, its statement that not all storage under the sections governing RCS providers is encompassed by the section governing ECS providers underscores that where an entity is both an ECS and RCS provider, which protections apply is a governed by the type of storage involved. A court in the District of Oregon has employed this approach: “Today, most ISPs provide both ECS and RCS; thus, the distinction serves to define the service that is being provided at a particular time (or as to a particular piece of electronic communication at a particular time), rather than to define the service provider itself.” In re U.S., 665 F.Supp.2d 1210, 1214 (D.Or.2009). For this reason, Weaver and Flagg do not conflict with Ninth Circuit precedent; indeed, they apply the rule set forth in Theofel to different factual circumstances. Weaver, Flagg, and Theofel all concerned email messages, and the court therefore finds them instructive in evaluating Media Temple’s webmail service and Facebook’s and MySpace’s private messaging. As respects messages that have not yet been opened, those entities operate as ECS providers and the messages are in electronic storage because they fall within the definition of “temporary, intermediate storage” under § 2510(17)(A). As respects messages that have been opened and retained by Crispin, under the reasoning of Weaver and Flagg, and the dicta in Theofel, the three entities operate as RCS providers providing storage services under § 2702(a)(2). The Facebook wall and MySpace comments present a distinct and more difficult question. Although many cases have emphasized in dicta that a BBS is the paradigmatic type of entity covered by the SCA, few, if any, cases have considered the question in any detail. In Konop, the Ninth Circuit considered a secure website containing a bulletin board on which an employee posted bulletins critical of his employer, his employer’s officers, and his union. Konop maintained a list of people, mostly other employees, who were eligible to access the website. A senior management official gained access to the website through false pretenses, i.e., by convincing an employee on the approved list to grant him permission to use his name to create an account. Konop, 302 F.3d at 872-73. The Ninth Circuit concluded that such a secure website or private bulletin board was covered by the SCA. Id. at 874. The Konop court treated Konop’s website as an ECS provider and the communication stored thereon as in electronic storage, under § 2510(17). It did not indicate whether the electronic storage was temporary and intermediate or for backup purposes. Id. at 879. By contrast, the district court in Steve Jackson Games, Inc. v. U.S. Secret Service, 816 F.Supp. 432 (W.D.Tex.1993), concluded, without analysis, that an electronic bulletin board was an RCS provider. Id. at 443. See also Inventory Locator Service, 2005 WL 2179185 at *24 (concluding that the definition of an ECS provider extends beyond “entities that provide gateway access to the internet” and includes a party that “operates a web-based forum in which potential buyers and sellers of airplane parts can communicate their requests to one another” and “contains an electronic bulletin board where customers can post requests or offers”). As noted in Konop, the difficulty in interpreting the statute is “compounded by the fact that the [SCA] was written prior to the advent of the Internet and the World Wide Web. As a result, the existing statutory framework is ill-suited to address modern forms of communication like [Facebook and MySpace]. Courts have struggled to analyze problems involving modern technology within the confines of this statutory framework, often with unsatisfying results.” As the Ninth Circuit further observed, “until Congress brings the laws in line with modern technology, protection of the Internet and websites such as [these] will remain a confusing and uncertain area of the law.” Konop, 302 F.3d at 874. In Snow v. DIRECTV, Inc., No. 2:04-CV-515FTM33SPC, 2005 WL 1226158 (M.D.Fla. May 9, 2005), the district court found that there could be no temporary, intermediate storage in the context of a BBS. The court noted that no one could “allege that the messages are being stored on his particular web site while waiting to be transferred to a final destination. Rather his website is the final destination for the information posted on a bulletin board.” Id. at *3. The court finds the reasoning of Snow persuasive; in the context of a social-networking site such as Facebook or MySpace, there is no temporary, intermediate step for wall postings or comments. Unlike an email, there is no step whereby a Facebook wall posting must be opened, at which point it is deemed received. Thus, a Facebook wall posting or a MySpace comment is not protectable as a form of temporary, intermediate storage. Nonetheless, “[t]he legislative history of the [SCA] suggests that Congress wanted to protect electronic communications that are configured to be private, such as ... private electronic bulletin boards.” Konop, 302 F.3d at 875. Because Facebook wall postings and MySpace comments, on the one hand, and bulletin postings on a website such as Konop’s, on the other, cannot be considered to be in temporary, intermediate storage, the court interprets Konop as holding that the postings, once made, are stored for backup purposes. This reading of Konop is consistent with Theofel and Quon, which held that email messages and pager text-messages, respectively, were held for backup purposes once read. Indeed, taken together, Quon and Theofel, which dealt with diverse forms of communication, i.e., email in Theofel and pager services in Quon, stand for the proposition that a user’s or an ECS provider’s passive decision not to delete a communication after it has been read by the user renders that communication stored for backup purposes as defined in the statute. Given the court’s conclusion that the BBS communication in Konop could not have been in temporary, intermediate storage, it appears that the passive action of failing to delete a BBS post, which is in all material ways analogous to a Facebook wall posting or a MySpace comment, also results in that post being stored for backup purposes. As a consequence, a harmonized reading of Konop, Theofel, and Quon leads to the conclusion that Facebook and MySpace are ECS providers as respects wall postings and comments and that such communications are in electronic storage. In the alternative, the court holds that the Facebook and MySpace are RCS providers as respects the wall postings and comments. In Viacom International Inc. v. YouTube Inc., 253 F.R.D. 256 (S.D.N.Y.2008), the district court considered the status of YouTube, which “encourage[s] individuals to upload videos to the YouTube site, where YouTube makes them available for immediate viewing by members of the public free of charge.” Id. at 258. “YouTube.com users may override the website’s default setting — which makes newly added videos available to the public — by electing to mark as ‘private’ the videos they post to the website.” Such videos “can only be viewed by others authorized by the user who posted each of them.” Id. at 264. The private videos whose production plaintiff sought to compel are thus analogous to the Facebook wall postings and MySpace comments defendants seek here, in that both are accessible to a limited set of users selected by the poster and are stored on a page provided by the website. The district court concluded that YouTube was an RCS provider because it provided storage services for the user, i.e., it stored the video on a web page for the benefit of the user and those the user designates. Although defendants here argue that the communications are not maintained by Facebook and MySpace “solely” for the purpose of storage because they are also maintained for display purposes, the court has difficulty distinguishing the YouTube decision. Additionally, the display purpose defendants posit is hard to separate from a storage function when the user provides access to a large number of people. This is because a storage service necessarily requires a retrieval mechanism to be useful. To retrieve communications in storage, the RCS provider must display those communications in some way. See Flagg, 252 F.R.D. at 359 (“[I]t is difficult to see how an archive of text messages would be of any use or value to a customer if the service provider did not also offer a mechanism for retrieving messages from this archive”). Although here a large number of users, i.e., all of plaintiffs Facebook friends, might access the storage and attendant retrieval/display mechanism, the number of users who can view the stored message has no legal significance. Indeed, basing a rule on the number of users who can access information would result in arbitrary line-drawing and likely in the anomalous result that businesses such as law firms, which may have thousands of employees who can access documents in storage, would be excluded from the statute. As noted, the statute does not limit storage to retention for benefit of the user only. In this regard, the court analogizes to Theofel, where the Ninth Circuit interpreted the “for purposes of backup protection” language in § 2510(17)(B), and concluded that any backup purpose was sufficient, whether for the benefit of the email user or for the benefit of the ISP. Theofel, 359 F.3d at 1075. Applying this logic to the RCS definition, it does not matter that the stored Facebook wall postings and MySpace comments are available to hundreds or thousands of approved users. At oral argument, defendants asserted that the evidentiary record developed before Judge McDermott was incomplete, in the sense that quashing the subpoena with respect to Facebook wall postings and MySpace comments assumes that: (1) Facebook and MySpace have available privacy settings that restrict access sufficiently that it is appropriate to analogize to a private BBS; and (2) assuming privacy settings are optional, plaintiff chose privacy settings that would support a finding that his Facebook wall and MySpace comments section are sufficiently restricted that they are not readily available to the general public. 18 U.S.C. § 2511(2)(g) (“It shall not be unlawful under [the SCA] for any person ... to intercept or access an electronic communication made through an electronic communication system that is configured so that such electronic communication is readily accessible to the general public”). With respect to webmail and private messaging, the court is satisfied that those forms of communications media are inherently private such that stored messages are not readily accessible to the general public. Thus, the court reverses Judge McDermott’s order with respect to the Media Temple subpoena and the Face-book and MySpace subpoenas to the extent they seek private messaging. The Media Temple subpoena and those portions of the Facebook and MySpace subpoenas that sought private messaging are therefore quashed. With respect to the subpoenas seeking Facebook wall postings and MySpace comments, however, the court concludes that the evidentiary record presented to Judge McDermott is not sufficient to determine whether the subpoenas should be quashed. The only piece of evidence adduced was a Wikipedia article stating that Facebook permits wall messages to “be viewed by anyone with access to the user’s profile page” and that MySpace provides the “same” functionality. This information admits of two possibilities; either the general public had access to plaintiffs Facebook wall and MySpace comments, or access was limited to a few. Given that the only information in the record implied restricted access, the court concludes that Judge McDermott’s order regarding this aspect of the Facebook and MySpace subpoenas was contrary to law. Because it appears, however, that a review of plaintiffs privacy settings would definitively settle the question, the court does not reverse Judge McDermott’s order, but vacates it and remands so that Judge McDermott can direct the parties to develop a fuller evidentiary record regarding plaintiffs privacy settings and the extent of access allowed to his Facebook wall and MySpace comments. III. CONCLUSION For the foregoing reasons, plaintiffs motion for reconsideration of Judge McDermott’s order is granted. The court reverses Judge McDermott’s order respecting the Media Temple subpoena and respecting so much of the Facebook and MySpace subpoenas as sought private messages. The Media Temple subpoena and the those portions of the Facebook and MySpace subpoenas that seek private messages are quashed. The court vacates Judge McDermott’s order respecting so much of the Facebook and MySpace subpoenas as sought Facebook wall postings and MySpace comments, and remands for further development of the evidentiary record consistent with this order. . Plaintiffs Complaint for: 1. Breach of Contract; 2. Direct, Contributory, & Vicarious Copyright Infringement; 3. Breach of the Implied Covenant of Good Faith and Fair Dealing; 4. Declaration of Rights as to Artwork; 5. Constructive Trust ("Complaint”), Docket No. 1 (Dec. 29, 2009). . Plaintiff's First Amended Complaint for: 1. Breach of Contract; 2. Direct, Contributory, & Vicarious Copyright Infringement; 3. Breach of the Implied Covenant of Good Faith and Fair Dealing; 4. Declaration of Rights as to Artwork; 5. Constructive Trust ("First Amended Complaint”), Docket No. 43 (Apr. 2, 2010). . Crispin alleges that he licensed fifteen works including Tiger with Roses, Skull with Anchor, Heart with Anchor, Skull Flags, Skull Helmet, Winged Wheel, Eagle, Black Panther, Camo Panther, Eagle Skull, Snake Skull, and Handcuffs. (Id., ¶ 26, Exh. 1.) Each of these works has been registered with the United States Copyright Office. (Id., ¶ 27.) . Id., ¶ 28. . Id., ¶¶ 29, 31. . First Amended Complaint at 2-3. . Plaintiff’s Notice of Ex Parte Motion and Motion for Order Staying Compliance with Defendants’ Subpoenas ("Motion to Quash”), Docket No. 22 (Feb. 24, 2010) at 3. . Id., Exhs. 2-4. . “ISPs allow individuals to access accounts from which they may send and receive e-mail. The server itself may be local, or it may be wide, such as the Internet. The Internet is not a centralized system and can be thought of as a ‘crazy game of connect-the-dots.’ ISPs give individuals the means to send messages from individual computers via commercial e-mail programs or mail-user agents. Essentially, ISPs provide account holders the ability to send, receive, and store opened and unopened e-mails associated with the ISPs' systems, which may also be thought of as the mail servers themselves.” Kimberly S. Cuccia, Note, Have You Seen My Inbox? Government Oversteps the Fourth Amendment Again: Goodbye Telephones, Hello E-mail, 43 Val. U.L.Rev. 671, 676-77 (2009). . Motion to Quash at 4-6; Plaintiff's Reply Brief in Support of its Ex Parte Motion and Motion for Order Staying Compliance with Defendants'