Short-Term Messages, Long-Term Consequences – New Guidelines from Antitrust Authorities on Ephemeral Messages

As collaboration tools and ephemeral messaging applications become ubiquitous in the modern workplace, the Antitrust Division of the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) are making clear that their content must be preserved like traditional modes of communication. On Friday, January 26, the DOJ and the FTC announced that they are updating language in their standard preservation letters and specifications for all second requests, voluntary access letters, and compulsory legal process, including grand jury subpoenas. Manish Kumar, Deputy Assistant Attorney General of the DOJ’s Antitrust Division in charge of criminal enforcement, noted that both DOJ and the FTC expect that companies and their current and former employees will preserve any and all responsive messages, regardless of their default settings to autodelete. An intentional failure to produce these communications may be treated as obstruction of justice.

The DOJ’s focus on ephemeral messaging is nothing new. During the March 2023 ABA National Institute on White Collar Crime, then Assistant Attorney General Kenneth Polite announced that DOJ was updating its Evaluation of Corporate Compliance Programs (“EECP”) guidance to include, among other things, a company’s use of ephemeral messaging and policies surrounding their use. The DOJ considers EECP guidance to be a critical tool in determining appropriate criminal penalties against corporations, and this update underscored their emphasis on corporate retention policies. For more information on the updated EECP guidance from March, see our contemporaneous analysis.

The DOJ has taken an aggressive litigation posture with respect to ephemeral messaging in several high-profile antitrust prosecutions. In its suit against Google, DOJ argued that the company actively encouraged the use of ephemeral messaging, including Google Chats set to autodelete after 24 hours. According to the DOJ, the alleged conduct was severe enough to warrant sanctions from the District Court. Similarly, the DOJ alleged that executives at Amazon used the disappearing message feature on Signal to avoid chat histories. These cases, presently pending, are a clear warning to all companies to take their preservation obligations seriously.

Companies should not wait for active litigation to properly preserve ephemeral and off-channel messages. In an ABA presentation on January 2,2024, Leslie Wulff, chief of the DOJ Antitrust Division’s San Francisco office, explained that companies must preserve communications even before DOJ involvement, noting that her office would “scrutinize every decision on the path that led to the deletion of relevant material, regardless of who made that decision and whether or not they hold a law degree.” In addition to the obstruction of justice charges mentioned in the more recent joint FTC and DOJ announcement, Ms. Wulff pointed to the fact that ephemeral messages deleted by one party could still be in the hands of other co-conspirators or third parties, warning that “[i]f the evidence exists, we will find it. It may take longer, it may cost your client more money and we may find it from other sources, but we will find it.”