Government Agencies Send Mixed Messages on Ephemeral Messaging, Placing Regulated Entities in Apparent Double Bind

Officials with the FBI and Cybersecurity and Infrastructure Security Agency (“CISA”) recently recommended Americans use encrypted messaging apps in response to the Salt Typhoon cyberattack that infiltrated at least eight U.S. telecommunications companies.  In a news call to address the Salt Typhoon attack, Jeff Greene, the executive assistant director for cybersecurity at CISA, stated, “Encryption is your friend,” and an official with the FBI added that “responsibly managed encryption” benefits users who wish to protect their mobile device communications.  These statements acknowledge that ephemeral messaging, which generally refers to messaging applications that employ “end-to-end encryption” or auto-delete technology, minimizes the risk of falling victim to a cyberattack.

But these recommendations and statements in favor of the legitimate benefits of encrypted messaging apps in enhancing a cybersecurity posture, may appear inconsistent with other statements disfavoring the use of such apps to conduct business.

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DOJ Using WWII-Era Act to Extend Statutes of Limitations

According to the Wall Street Journal, the Justice Department has invoked the 1948 Wartime Suspension of Limitations Act (the “WSLA”) in an effort to aggressively extend and suspend statutes of limitations in alleged financial crimes.

Pursuant to the WSLA, “[w]hen the United States is at war…. the running of any statute of limitations applicable to any offense involving fraud … against the United States … shall be suspended until 5 years after the termination of hostilities. 18 U.S.C. § 3287(c).

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