Ephemeral messaging is short-lived, yet the data preservation and regulatory obligations remain.
Ephemeral messaging apps – like WhatsApp and SnapChat – are a form of digital communication available for a limited time and then deleted. The two key characteristics of ephemeral messaging are: (1) automated deletion of message content for both the sender and the receiver and (2) end-to-end encryption which enhances privacy by making it more difficult for hackers and others to read the encrypted data while it is in transition between devices.
The three degrees of ephemerality in messaging apps are:
- Pure which involves the permanent and automated deletion of messages;
- Quasi which permits preservation of messages in certain circumstances; and
- Non-ephemeral in which messages usually remain on a source (such as a server) and may not include end-to-end encryption.
The benefits of ephemeral messaging include:
- Information governance: Data storage and records preservation/management are reduced by ephemeral messaging.
- Legal compliance: Encryption and automatic deletion of personal data help reduce exposure if a data breach occurs.
- Data security: Even if a mobile device is lost, the automatic deletion of data will likely protect against hackers.
The legal risks of ephemeral messaging include: (1) complying with subpoenas and (2) preservation of data when litigation is “reasonably anticipated”.
Subpoenas often define documents and communications broadly to capture all communications, including ephemeral messaging. Thus, the failure to preserve documents may result in an inability to fully comply with a subpoena and/or a criminal exposure, particularly if the subpoena was issued by the government.
Regarding the preservation of data, legal hold policies may need to be amended to address ephemeral messaging, including when a company is dealing with government regulators. See e.g., Federal Trade Commission v. Noland, et al., Case No. CV-20-00047-PHX-DWL (D. Ariz. 2021) (sanctioning defendants for installing and using ephemeral messaging after learning they were investigation targets).
Some regulators caution against the use of ephemeral messaging. For example:
- The U.S. Securities and Exchange Commission (“SEC”) issued a guidance in 2018 that prohibits business use of apps which permit automatic destruction of messages.
- The U.S. Department of Justice (“DOJ”) updated its Evaluation of Corporate Compliance Programs in March 2023 which discusses the factors that prosecutors should consider in conducting an investigation of a corporation including the adequacy and effectiveness of the corporation’s compliance program at the time of the offence as well as at the time of the charging decision.
Accordingly, establishing adequate and effective corporate compliance programs are important, including:
- establishing a corporate compliance program which is monitored, updated, and works in practice, and
- reviewing the company’s document-retention policies and procedures, including whether they address ephemeral messaging and mobile device data.
In sum, although ephemeral messaging is short-lived, the consequences – of failing to comply with data preservation and regulatory obligations – may be long lasting.
