Navigating Ephemeral Messaging Apps in the Digital Age

Ephemeral messaging apps are designed to automatically delete messages after they're read or a certain time period has passed. This feature is meant to provide users with a sense of security and control over their online interactions.

The concept of ephemeral messaging has been around since Snapchat's release in 2011. Snapchat's founders created the app as a way for users to send photos and videos that would disappear after they were viewed.

Ephemeral messaging apps are a type of messaging software that automatically erases conversation history between users.

They offer users the ability to send self-destructing messages that automatically disappear from recipients' conversation histories.

Messages are permanently deleted and can no longer be accessed, read, or otherwise preserved, screenshot, or shared by the sender or the recipient.

Some messaging applications, particularly those integrated with social media platforms, allow users to opt into functionality that makes their messages automatically disappear after a set period or after the message is read.

Ephemeral messaging apps provide end-to-end encryption, screenshot protection, and automatic content deletion from all devices.

These applications are rapidly proliferating and are helping to reshape the landscape of digital communications.

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Ephemeral messaging apps can significantly complicate the ediscovery process in litigation, posing challenges for legal and regulatory compliance.

The temporary nature of these messages makes it difficult to preserve and collect relevant communications, potentially leading to spoliation of critical evidence. This can result in severe sanctions, including fines and penalties.

Organizations must be proactive in establishing and enforcing policies regarding the use of ephemeral messaging apps within the organization, including guidelines for preservation and data retention.

Here are some key challenges associated with ephemeral messaging in litigation:

Ephemeral messaging can significantly complicate the ediscovery process and pose challenges for legal and regulatory compliance.

The temporary nature of ephemeral messages makes it difficult to preserve and collect relevant communications, which can lead to spoliation of critical evidence. If a party fails to preserve relevant communications in ephemeral messaging apps, they may face sanctions, which could be severe if there is intent to deprive.

Preserving and collecting ephemeral messages can be challenging due to auto-deletion features, which can delete messages before they can be properly preserved. This can result in incomplete conversations and make it difficult to accurately interpret the content and relevance of the remaining messages.

Ephemeral messaging apps can also raise suspicions of attempting to conceal or destroy evidence, leading to allegations of obstruction of justice. This is particularly true in ongoing criminal litigation or investigations.

To be prepared to address these challenges, legal teams must be proactive in establishing and enforcing policies regarding the use of ephemeral messaging apps within the organization. This includes guidelines for preservation and data retention, especially once litigation is anticipated or an investigation begins.

Here are some key challenges associated with ephemeral messaging in litigation and investigations:

These challenges can lead to increased costs, case-ending sanctions, and difficulties in collecting and preserving electronic evidence.

In the EU and UK, regulatory requirements for ephemeral messaging apps are strict. Organizations must ensure compliance with these regulations to avoid potential issues.

The European Union's GDPR imposes strict requirements on the processing, storage, and transfer of personal data. This includes obtaining valid consent, implementing appropriate security measures, and adhering to data retention policies.

Ephemeral messaging apps used in the EU must also comply with the ePrivacy Directive and be prepared for the upcoming ePrivacy Regulation. These regulations focus on protecting privacy and confidentiality in electronic communications.

Financial institutions in the EU must ensure that relevant communications are captured, retained, and managed in accordance with MiFID II requirements. This includes recordkeeping for communications related to investment services.

In the UK, organizations using ephemeral messaging apps to handle personal data must ensure compliance with both the GDPR and the Data Protection Act 2018. This provides additional rules for the processing of personal data within the UK.

Here are some key regulatory requirements for ephemeral messaging apps in the EU and UK:

Data preservation and collection are crucial when dealing with ephemeral messaging apps. Ephemeral messages can be challenging to preserve, but it's essential to comply with legal obligations related to ESI preservation and discovery.

Organizations can limit the use of purely ephemeral messaging apps to non-critical or non-sensitive communications to minimize the risk of losing relevant information. This approach can help prevent the destruction of relevant evidence.

To preserve data from ephemeral messaging apps, organizations should include these apps in their legal hold process. This involves notifying users to suspend the deletion of messages and collecting data using available tools or working with the app provider to obtain the necessary information.

Conducting custodian interviews promptly is also essential to identify uses of ephemeral messaging apps and instruct custodians to suspend auto-deletion or use non-ephemeral messaging apps.

Technical solutions can be leveraged to archive or backup messages from ephemeral messaging apps in a legally compliant manner. Organizations can use three types of solutions for the collection of messages from ephemeral messaging apps:

Organizations should keep a detailed record of their processes to preserve and collect data from ephemeral messaging apps. This documentation may be critical in demonstrating your organization's good faith efforts to comply with legal obligations during litigation.

The Department of Justice (DOJ) expects companies to address accessibility and preservation of business-related electronic data and communications, including those made by third-party vendors and other agents of the company.

Companies must establish and enforce internal data retention policies and procedures that include the preservation of ephemeral messages. These policies should outline the types of data to be preserved, the duration of retention, and the procedures for data management.

The DOJ's revised Corporate Enforcement Policy in 2017 requires companies to prohibit employees from using software that generates but does not appropriately retain business records or communications.

In 2019, the DOJ revised its Justice Manual to indicate that companies should implement appropriate guidance and controls on the use of personal communications and ephemeral messaging platforms.

The DOJ's new guidance in March 2023 emphasizes the importance of monitoring and managing the use of personal devices and associated messaging applications by staff.

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Ephemeral messaging apps pose significant challenges for eDiscovery and forensics investigations. The temporary nature of messages makes it difficult to collect and preserve electronic evidence for use in legal disputes.

Many ephemeral messaging apps use end-to-end encryption, which makes it hard for investigators to access messages in transit. This can impede the collection of evidence.

Organizations can take several steps to overcome these challenges. Developing a clear policy for the use of ephemeral messaging apps is essential. This policy should outline guidelines for employees on how to use these apps and when they should be used.

Monitoring employee use of ephemeral messaging apps is also crucial. This can help identify potential issues and ensure compliance with policies.

Preserving data from ephemeral messaging apps is a significant challenge. Organizations should implement processes for preserving data when necessary. This can include training employees on how to save messages or implementing software tools to capture and archive messages automatically.

Forensic experts can use specialized tools and techniques to preserve and potentially recover deleted data. They can also analyze data from different devices and sources.

Here are the three categories of messaging apps outlined by The Sedona Conference:

The challenges associated with ephemeral messaging in discovery, investigations, and litigation include auto-deletion of messages, proliferation of apps, no "secret hold" capabilities, shadow IT, and presentation of conversations for review.

Companies should have enforceable policies and controls in place to minimize legal and compliance risks from employee use of ephemeral messaging apps.

Ephemeral Messaging Apps, or EMAs, are a subset of Messaging Apps that allow messages to disappear on the recipient's device after a short duration, set by the sender.

Snapchat is the most popular EMA, and users should think twice before sending messages, as they can be temporary and difficult to preserve.

A party may not be required to provide discovery of EMA data from sources that are not reasonably accessible due to undue burden or cost, as per Fed.R.Civ.P. 26(b)(2)(b).

However, courts may still order production of EMA data, as seen in the case of Doe v. Purdue, et al., where the plaintiff was sanctioned for misrepresenting the contents of his Snapchat account.

Companies should understand how EMAs work and determine whether there is relevant data saved within an EMA application when responding to discovery.

It's essential to remember to ask about EMAs if applicable to your case when propounding discovery.

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Ephemeral messaging apps are becoming increasingly popular, but they also raise important questions about their use in a business setting. Regulators and courts should recognize that ephemeral messaging may advance key business objectives.

Organizations should take affirmative steps to manage ephemeral messaging risks. This includes developing comprehensive use policies for these applications. These policies should be informed and make employees aware of the potential risks and consequences of using ephemeral messaging.

Regulators, courts, and organizations should consider practical approaches to resolve cross-jurisdictional conflicts over ephemeral messaging. This includes comity and interest balancing. The goal is to find a fair and reasonable solution that works for everyone involved.

Reasonableness and proportionality should govern discovery obligations relating to ephemeral messaging data in U.S. litigation. This means that the amount of data that must be produced should be reasonable and proportional to the needs of the case.