Jessica Nall and Josh Malone discuss legal pitfalls, compliance issues, and the digital minefield that arises when employees use ephemeral messaging apps to conduct business in an article published by Bloomberg Law.
Employees are using communication modes other than company e-mail to communicate for business—including texts and ephemeral messaging apps like WhatsApp or Telegram— which creates challenges for companies investigating potential wrongdoing within its ranks and for government investigators conducting parallel or follow-on inquiries.
When business communications occur on platforms that companies do not control, there can sometimes be no way for them or the company or the government to access the information necessary to understand and remediate compliance failures.
And when important pieces of the factual puzzle are missing, investigators may infer that the unavailable messages contained evidence of wrongdoing. Instead of producing key, potentially exculpatory information, the company risks losing out on cooperation credit with the government or discovery sanctions for spoliation.
This problem is particularly acute when employees use ephemeral messaging apps that dispose of messages within a short time. As such apps have risen in popularity, particularly overseas, companies are grappling with how to handle their use in the workplace, and with little guidance from government agencies or courts on when such use is appropriate.
Most recently, companies were left to unravel the DOJ’s March update to its FCPA Corporate Enforcement Policy, which provided that companies can allow the use of “personal communications and ephemeral messaging platforms” and still receive full credit for remediation if “appropriate guidance and controls” are implemented. What’s “appropriate” here is anyone’s guess.
Companies are thus left to navigate a complex landscape that includes varying technological offerings, the use of a mixture of personal and business-owned devices, international cultural norms and regulatory regimes, and the inherent practical difficulties in accessing business messages on platforms not controlled by the company.