Issues With Self-Destructing Messages In The Workplace

Inside many businesses, emails and electronic communications are the primary—and sometimes only— way people communicate. As one federal judge noted, email has not only replaced paper memos and letters, but "many informal messages that were previously relayed by telephone or at the water cooler are now sent via email."1

But the convenience of electronic communication comes with some costs: Email's persistence and ease of duplication mean that once a message has been sent, the author loses all control over it. Emails can be easily distributed well beyond their intended audience, and often re-emerge to the detriment of the sender in litigation or other disputes. Snapchat, an app that allows users to send picture and video messages that "self-destruct" after viewing, has achieved a $2 billion valuation by offering at least a partial solution to these problems. Encouraged by Snapchat's success, several recently launched apps aim to bring "self-destructing" messages to a more business-minded user demographic.

For example, an app called TigerText markets itself as an enterprise solution for complying with health care confidentiality and other privacy regulations, while promoters of the app Confide describe it as the "Snapchat of the C-suite." The need for confidential communication regarding sensitive business issues is common among busy executives and professionals, but trying to coordinate schedules for phone calls or other real-time meetings can be challenging, and in today's globalized marketplace this difficulty is often compounded by differences of time zone and geography. At the same time, the ubiquity of mobile devices and our "always-on" culture cause people to be less tolerant of communication delays. But despite the inconvenience and lost productivity involved in arranging real-time talks, it is wise to be cautious about discussing sensitive topics by email because of the risk such communications might find their way into the possession of a litigation adversary, competitor, or other hostile party. The ability to send secure messages that cannot be saved, stored, or forwarded could foster productivity by encouraging frank and timely communications, freeing people from both the need to coordinate real-time conversations and the fear that messages will fall into unwanted hands. As the draw of self-destructing messaging apps for busy professionals is likely to be strong, firms and their legal advisors need to be proactive in contemplating how such apps might be used in the workplace.

These apps raise a number of potential compliance and legal concerns. The fundamental problem with these self-destructing message systems is that users may view communications sent through them as unrecorded, similar to a phone call or face-to-face talk, but this perception is not correct. A communication that is quickly or automatically deleted is not the same as one that was never recorded. Sending communications through a system that makes deletion automatic (and perhaps irreversible) is not likely to excuse noncompliance with any legal or ethical obligation to preserve documents. Lawyers and compliance professionals will need to be vigilant to ensure that corporate personnel are not inadvertently violating document retention obligations by using these services, thereby exposing themselves or their employers to sanctions.

One potential concern is the use of these apps by companies in regulated industries, such as financial services firms, companies subject to Sarbanes-Oxley, or health care organizations, where their use may violate regulatory record retention obligations. For example, regulated financial entities are required to retain broad categories of internal and external communications...