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The Message Is Clear: Assess Your Information Governance Practices In Light of DOJ and SEC Crackdown on Use of Personal Devices and Messaging Apps
Regulators increasingly are scrutinizing employee use of personal devices and third-party messaging apps ― in particular, but not only, ephemeral apps where messages automatically disappear ― as employees continue to conduct business on multiple platforms and concurrent channels of communication. The Department of Justice (DOJ) recently issued its most comprehensive guidance to date on its expectations that companies preserve all business communications conducted on personal devices and messaging apps. And the Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) continue to aggressively enforce their recordkeeping rules against regulated entities that do not properly preserve their electronic business communications. Notably, while the SEC and CFTC have been focused on regulated entities, the DOJ's guidance applies to all businesses.
This article summarizes the DOJ's recent guidance and the SEC's enforcement trends and priorities in this area, and it provides information governance best practices companies can implement now to ensure they are meeting regulators' expectations and recordkeeping rules.
DOJ Policy
The DOJ's focus on individuals using personal devices and messaging apps for business purposes is not new. As far back as 2017, the DOJ issued guidance that companies under investigation for alleged Foreign Corrupt Practices Act violations would be ineligible for full cooperation credit unless they prohibited employees' use of ephemeral messaging. However, after noting that many companies use ephemeral messaging for legitimate business purposes, the DOJ subsequently instead required companies using ephemeral messaging to maintain controls that ensure information is retained pursuant to appropriate retention policies and legal requirements.
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