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Feds to businesses: Preservation rules don't vanish with "ephemeral" messages

"This preservation responsibility applies to new methods of collaboration and information sharing tools, even including tools that allow for messages to disappear via ephemeral messaging capabilities"

Photo by Ian Hutchinson / Unsplash

Business executives face obstruction of justice charges if they fail to produce conversations or documents shared over collaboration platforms like Slack or Teams if their organizations are investigated by the FTC and DOJ.

The two agencies, which occasionally are at loggerheads, have issued a joint statement on “preservation obligations for collaboration tools and ephemeral messaging”.

It called out platforms such as Slack, Microsoft Teams and Signal, but we can assume this is in no way an exhaustive list.

The warning leaves tech leaders in no doubt that they must bring such platforms under control in their organizations – and work out how to preserve and manage the vast amount of data this will encompass.

See also: Shadow IT failings cost Morgan Stanley $200m as CIOs continue to grapple with WhatsApp use

The agencies said they were updating language “in their standard preservation letters and specifications for all second requests, voluntary access letters, and compulsory legal process, including grand jury subpoenas, to address the increased use of collaboration tools and ephemeral messaging platforms in the modern workplace.”

The agencies said the advice reinforces “longstanding obligations” on companies to preserve material during “the pendency of government investigations and litigation”.

This applies “to new methods of collaboration and information sharing tools, even including tools that allow for messages to disappear via ephemeral messaging capabilities,” said FTC Bureau of Competition Director Henry Liu.

Manish Kumar, Deputy Assistant Attorney General of the Justice Department’s Antitrust Division said the changes “Will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages.”

Confusion over the status of collaboration and messaging platforms has been a factor in numerous court cases and investigations in recent years.

WhatsApp messages relevant to the Wagatha Christie case in the UK were lost when a participants’ mobile was lost at sea.

More seriously, politicians and policy makers in the UK have come under scrutiny after their Whatsapp messages were cited – or not – during the official Covid inquiry. Multiple accounts of lost messages or deleted suggested, at best, confusion over official policies on preservation.

Meanwhile, the FTC has launched an inquiry into cloud providers and generative AI companies. It said it had issued orders to Alphabet, Amazon, Anthropic, Microsoft and OpenAI, “requiring them to provide information regarding recent investments and partnerships involving generative AI companies and major cloud service providers.”

It said it wanted to build a “better internal understanding of these relationships and their impact on the competitive landscape.” That better understanding includes whether “investments and partnerships pursued by dominant companies risk distorting innovation and undermining fair competition."

The announcement apparently resolves a standoff between the FTC and the DoJ over who should take the lead into investigating Microsoft and OpenAI’s rather obscure relationship.

The EU and the UK have already kicked off their own investigations into Microsoft and OpenAI, as part of broader examinations into the AI market.

See also: The world’s first fully specified, end-to-end encryption standard just landed. That's big.