The Enduring Problem with Ephemeral Messaging

The Enduring Problem with Ephemeral Messaging

With encrypted, ephemeral messaging apps like Confide, Signal and Telegram, there’s no paper trail. This is a problem, say critics, when government officials use them to conduct business that the public should be aware of and have access to.

Among LLM, Inc.’s Top 10 Legal Trends for 2018 was the increase in technology, like ephemeral messaging, which auto-deletes messages after a period of time, thus requiring a greater focus on spoliation. As employees use these apps, companies have an obligation to preserve data that could be relevant to future litigation or regulation requirements.

Ars Technica reported on the recent Missouri case of Sansone v. Greitens, and that it appears to be the first lawsuit involving a state-level government agency and its alleged use of an ephemeral messaging system. More specifically, the suit brought forth by attorney Ben Sansone, on behalf of The Sunshine Project, alleges that the office of Governor Eric Greitens used Confide, which violates state public records law.

While Greitens listed the number of staff members who had Confide accounts, accounting for more than half of the staff, attorney Mark Pedroli, who, along with Sansone had first filed a public records request, stated that adequate declarations did not accompany the figures. The fact that Greitens no longer holds that office does not change the nature of the case, Pedroli told Ars.

“The lawsuit was filed to find out whether or not Eric Greitens and others destroyed original communications that they should have retained.”

It’s possible that such messaging apps are used at an even higher level of government. Ars’ reporting includes an allegation that Confide and Signal were also used in the Trump White House before being banned for not being compatible with the Presidential Records Act. On a related preservation note, recently, there was an allegation that the President tears up papers, causing staffers to have to tape them back together in order to comply with the same law.

Also recently in the news, the possibility that Special Counsel Robert Mueller has asked investigation witnesses to turn in their phones so that the encrypted, ephemeral messaging apps could be inspected.

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