What do applications like Snapchat, Telegram, Wickr, Cover Me, Speak On, and Whisper have in common? They are all self-destructing message (“SDM”) applications. What exactly does this mean, you ask? Self-destructing messaging applications transmit information with end-to-end encryption, and auto destruct after a set time period of time, or after receipt and access by the intended recipient. Consider Snapchat, for example. Snapchat is one of the most popular social media platforms in the world. Indeed, in 2016, Snapchat surpassed Facebook’s number of video views per day.* Part of Snapchat’s popularity is derived from the fact that the user can set timers for shared photos / videos to self-destruct once the person received it; allowing users (typically younger generations) to share photos without the risk of the photo going public.
Yet, what happens when SDM technologies (which are evolving rapidly) are used in the corporate world? How does one preserve potentially relevant information? What is the risks verses benefits of incorporating into one’s business SDM technology? These questions – and others – are likely questions litigators will grapple with in the coming months/years given the rapid growth of SDM technology.**
While it is impossible to predict the future, I suspect it is only a matter of time until this issue becomes more of a focus in litigation and I look forward to reading decisions on point as the case law catches up to the technology.
** Consider, for example, the Waymo LLC v. Uber Technologies, Inc., lawsuit, wherein allegations have arisen that one party is hiding information relevant to the lawsuit by transmitting that information via SDM. Consider further the fact that the Department of Justice in December issued an enforcement policy urging strongly against the use of messaging applications that do not store data in a way that allows for access during a subsequent investigation. https://www.justice.gov/usam/usam-9-47000-foreign-corrupt-practices-act-1977 These recent lawsuits and policies make plain SDM technology is being employed in corporate America.