a[n] ... electronic communication incidental to the electronic transmission thereof,” 18 U.S.C. § 2510(17)(A), and “any storage of such communication by an electronic communication service for purposes of backup protection of such communication,” 18 U.S.C. § 2510(17)03). The Defendants argue that, whether opened or unopened, email messages are not in electronic storage. It is unclear whether opened email messages are in electronic storage. Compare Theofel v. Farey-Jones, 359 F.3d 1066, 1071, 1075-76 (9th Cir.2004) (explaining that “prior access is irrelevant to whether the messages at issue were in electronic storage”; rather, the inquiry under definition (B) is the purpose for which the messages are being stored), and Jennings v. Jennings, 389 S.C. 190, 697 S.E.2d 671, 678 (App.2010) (<HOLDING>), with Crispin v. Christian Audigier, Inc., 717
holding that email messages stored on a server after the messages have been opened are in electronic storage because they are stored for backup protection holding that government officials are provided with qualified immunity so long as their actions could have been reasonably thought consistent with the rights they are alleged to have violated holding that that choices as to selection and arrangement are entitled to copyright protection only so long as they are made independently holding that lprs are entitled to the protection of the equal protection clause holding that when regulations are intended to have different purposes and are not dependent on each other they are not intertwined