Feds Warn Companies Not to Delete Chats

Do you use Slack or Signal for work? If so, don’t delete your chat history. The Federal Trade Commission (FTC) and Department of Justice (DOJ) said Friday that companies under investigation will have to turn over these messages or face potential civil penalties and criminal obstruction charges.

“These updates to our legal process will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages,” Manish Kumar, deputy assistant attorney general at the DOJ’s antitrust division, said in a statement.

“The antitrust division and the Federal Trade Commission expect that opposing counsel will preserve and produce any and all responsive documents, including data from ephemeral messaging applications designed to hide evidence. Failure to produce such documents may result in obstruction-of-justice charges.”

Federal antitrust enforcers said they’re updating the language in document requests they send to companies under investigation, to ensure the preservation of messages sent through collaboration tools such as Slack, Signal, Google Chat, and Microsoft Teams—messaging apps that are supplanting email as the preferred mode of work communication.

The problem is that these transitory modes of communication make it easy for written records to disappear.

“Documents created through use of these technologies have long been covered by FTC and DOJ document requests. However, companies have not always properly retained these types of documents during government investigations and litigation,” the FTC said in a statement.

The announcement follows two high-profile cases against tech giants accused of deliberately deleting internal communications that could be used in future litigation.

In its sweeping antitrust lawsuit against Google, the Justice Department claimed the company “empowered and even encouraged” its employees to use off-the-record chats, such as Google Hangouts or instant messages that were set to auto delete after 24 hours. The government claimed the activity occurred over at least four years, including a period when the company “reasonably anticipated” litigation, and had asked U.S. District Judge Amit Mehta to issue sanctions.

As part of Google’s “Communicate with Care” program, the DOJ said, Google trained employees on the benefits of sending “history-off” chats.

Google also took heat from U.S. District Judge James Donato, who publicly rebuked Alphabet chief legal officer Kent Walker over the company’s recordkeeping missteps in a separate antitrust lawsuit over its app store.

Amazon is also accused of concealing communications from both the FTC and 17 states suing over its alleged online retail monopoly. Their lawsuit said Amazon executives “systematically and intentionally deleted internal communications using the ‘disappearing message’ feature of the Signal messaging app” and “prejudicially destroyed more than two years’ worth of such communications—from June 2019 to at least early 2022—despite plaintiffs instructing Amazon not to do so.”

Both companies have denied the claims. In a court filing, Google said it took “reasonable steps” to preserve history-off chats, and in a statement Amazon said it “voluntarily disclosed employee Signal use to the FTC, painstakingly collected Signal conversations from its employees’ phones, and allowed agency staff to inspect those conversations even when they had nothing to do with the FTC’s investigation.”

The U.S. Securities and Exchange Commission (SEC) has also started to penalize companies that take a lax approach to preserving employee chat histories. The agency has fined more than 40 firms $2.7 billion for conducting business off-channel, including via WhatsApp.

From: Corporate Counsel