It’s been a year since the Department of Justice announced its updated guidance on the use of ephemeral messaging platforms for corporate communications. The Department and other regulatory authorities have since been consistent in their view: Companies that enforce robust policies will be rewarded, while those that fail to do so may face heightened penalties should these communications come under scrutiny. The shift in stance underscores the ongoing importance of digital communication in organisational governance and legal compliance.
Companies are thus encouraged to establish precise policies on ephemeral messaging, provide alternative avenues for sending company-related texts, and invest in employee training programs.
These communication apps, which erase conversations after they occur, are viewed by regulatory authorities as critical evidence. The DOJ expects companies to actively guide and monitor their employees’ use of these applications for business matters. Recently, it updated its standard preservation letters, grand jury subpoenas, and mandatory legal processes to address the issue.
A case in point is the DOJ’s praise for Corsa Coal Corp for its cooperation in volunteering information that resulted in two of its ex-executives being indicted under the Foreign Corrupt Practices Act. On the other hand, FTX Trading Ltd’s failure to adequately preserve messages was emphasized during a recent criminal trial.
To tackle such perils, companies need precise policies and must adopt company-controlled and accessible messaging applications as alternatives to ephemeral ones. Practical retention policies, mobile device policies, and app management software should also be used. Finally, the development of employee training programs will aid in these measures and empower employees to play an active role in mitigating risk.