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Deeper Dive: Preserving Ephemeral Messaging — Capture Data Before Its Ghosts Haunt Your Compliance
Organizations whose mantra is "We just never delete anything" (i.e., organizations simply retaining all information indefinitely) are now facing headwinds, especially when the information contains personal information. As our 2024 DSIR Report makes evident, data incidents continue to plague businesses in all sectors of the economy, exposing information of no business value but with real business risk. Likewise, maintaining information containing sensitive personal information may require disclosures under the California Consumer Privacy Act. That said, indiscriminate deletion is not acceptable either, in part because of the risk of prematurely deleting information relevant to litigation or government investigations. This article considers how an organization might consider handling information generally, through the lens of a specifically troubling subset of information: ephemeral messages.
Federal Regulators Reemphasize Significance of Ephemeral Messaging
Although the way we communicate continues to change rapidly, U.S. regulatory agencies remain steadfast in their commitment to ensure all evidence relevant to their respective investigations is being preserved, and plaintiffs' counsel are not far behind. In March 2023, the U.S. Department of Justice (DOJ) reinforced its concerns about the loss of ephemeral messaging and issued comprehensive guidance instructing organizations to preserve all relevant business communications conducted on personal devices and messaging apps. While acknowledging the important role ephemeral messaging platforms could have in enabling business growth and prosperity, the DOJ also made clear that organizations should tailor policies and procedures to effectively pivot from deletion to preservation in the event of an investigation.
Such instruction has been reinforced in recent announcements by the DOJ and the Federal Trade Commission (FTC) concerning updates to their preservation letters that provide accommodation for the ubiquity of ephemeral messaging across all business sections. This comes on the heels of aggressive enforcement by the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) of recordkeeping rules that apply to regulated entities with regard to properly preserving their electronic business communications. Notably, while the SEC and CFTC focus on regulated entities, the DOJ's guidance applies to all businesses.
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.