Uber's use of encrypted messaging may set legal precedents
reuters.com
reuters.com
> However, companies have an obligation to preserve records that may be reasonably seen as relevant to litigation or that fall under data retention rules set by industry regulators
Seems pretty clear that Uber violated this.
Or is the charge that they in general did their communication on Wickr?
What happens if the service I am using has an inherent 24-hour window after which all data is erased? What if that window is 0 hour now? No data storage.
If FB deleted all data about a druglord (who used FB for some nefarious purposes) after she deleted his profile, will FB be considered guilty of deleting evidence that could have been used to incriminate her?
That's the criminality — the evasion, itself; not which tool was used, but why.
Ephemeral messaging services have neither.
For instance, will an insistence that execs of Uber only talk in air-gapped soundproof rooms be considered incriminating?
Please don't drag the actual point down into the weeds like that — particularly while accusing me of being the one to do so.
I hate how stupid laws can get...
I’m struggling to understand this. It seems to suggest a company cannot discuss anything potentially problematic unless there’s a log.
From the article:
>companies have an obligation to preserve records that may be reasonably seen as relevant to litigation or that fall under data retention rules set by industry regulators.
So, is that saying watercooler chat is ok over Snapchat but nothing serious?
Edit: I think this is answered well here: https://news.ycombinator.com/item?id=15827511
In your example, I don't think FB would be at fault here any more than Wickr is at fault. The problem is with Uber (or the druglord), not the tool that happened to do the deleting.
But that's an insinuation. Just like the govt can insinuate that people using encrypted communication are doing so to hide illegal activities.
Is there specific evidence that Uber asked employees to use Wickr in order to hide talks of illegal activities?
Literally from the article.
Legal departments know it's impossible to be 100.00% legal (who has never trespassed a single law?), and they're tasked with avoiding any legal risk. To them, it's probably just risk mitigation to ask employees to avoid leaving unnecessary evidence.
I guess it's just a case where the law makes no sense: you can't prove you've innocently suggested to use a secure communication tool for the right reasons, so there will always be a doubt about your sincerity.
Then the investigators find that email stopped when you decided to use a “secure” messenger tool that automatically self-destructs messages.
What inference would any rational human draw?
No, they're not just insinuating, but ironically you are.
Even simple logic fails so often with law/justice/government.
Wickr: 'Secure Communications for Teams and Enterprises'... The law isn't OK with the concept of security I think (except security it can bypass of course).
It does amuse me though that HN isn't OK with it, because it's a corporation doing it.
The more the world is upside down, the harder it is to respect the law for normal honest citizens.
My company has a policy that outlook will expire all messages in my inbox after 30 days (saved messages folders have a different policy). However when we get legal notice IT quickly changes a setting and now it is not possible for that person to delete any existing email. (eventually legal will review every email you have saved, they will then let you delete the ones that are not affected, but they err on the side of keeping anything) Even if you hit delete, the system will not let you delete the message. Our IM system makes it hard to save conversations, in part of make it hard for investigators to get access to conversations.
As for Facebook, that is complex, depending on which situation. If the "evil person" deleted his account with no knowledge that he was under investigation than Facebook is safe. However the evil person could be in trouble if he knew he was under investigation. If Facebook knew about the investigation they could not legally delete all his data, I presume they have something in place for this situation.
Of course in most cases evil people don't know they are under investigation. This mostly is a factor when a company is sued.
Also: a phone call can capture surrounding audio not intended to be part of the phone call. That audio can either leak information itself, or reveal the originator's location.
So can email headers, though.
And privacy should NOT be about just protecting you from shit that you might regret.
See, if we get down to brass tacks, I personally would be willing to put my money on Uber being guilty as sin.
But that doesn't mean that I think a company should not be allowed to ask employees to prefer a confidential or ephemeral medium of communication.
If you normally delete email, that’s ok until there is litigation.
> However when we get legal notice IT quickly changes a setting and now it is not possible for that person to delete any existing email.
Do you get a list of people that you need to change the retention policy or just disable deletion for all employees?
Not commenting on how the law (which was written before "apps" existed) treats it, but on the true nature of a phone call vs. a messaging app.
This stuff is more about opposing counsel searching for keywords and finding something that adds supposed context to whatever they are suing about. If you send an inappropriate picture of a woman and make some crude comment, that can be used to bolster a harassment claim or establish a pattern of boorish behavior. If you make crude comments on the phone, that isn’t going to as easily reappear 5 years later.
(Not the exact wording, but the intent was clear. They even educated every employee on the importance of not writing down stuff that may be later quote-mined in a lawsuit.)
There's a MASSIVE difference between not writing stuff down because you have no idea if your competitors may use it against you in a future lawsuit, and not writing stuff down because you know what you're discussing is illegal.
How can you know that if you are not a lawyer?
Even if you didn't do anything illegal, they can be used against you anyway.
Generally speaking you have latitude to do what you normally do within a medium. If you routinely delete mail every quarter, that’s ok. If you routinely record phone calls that’s ok. But there is no requirement to talk or write.
Once you reasonably suspect that you are in the scope of an investigation or litigation, you need to take steps to preserve relevant things. Guidance from counsel is a good idea.
Discovery is a double edged sword. Moving deliberative activity to phone calls or meetings doesn’t mean there is no record of the encounter. To the contrary, one or more parties are probably taking notes that align with their perceptions. (And self interest!) It all depends on the situation.
You can destroy whatever you want pre-lawsuit. Once the suit is filed, you are not allowed to destroy anything that is evidence, and most lawyers will caution you away from destroying anything at all at that point, since the most mundane things could be perceived as evidence under argument.
This is being painted as "Uber is being super slimy". Anyone who has sat through a trial having anything to do with electronic communications knows that it's a benefit to everybody if as little logging is done as possible.
> On December 18th, you responded "OK", but on December 19th you responded "Will Do" to the same request from another co-worker. Why was the second co-worker more deserving of a positive response?
Trials are littered with this kind of mundane exchange.
It's why Clinton, Bush, and I'm sure Obama and Trump all used alternative communications systems - because when every thought that is laid down will come under scrutiny, you lose productivity. How are we going to hold companies to standards that we don't expect our nations leaders to follow?
That's at best imprecise; the duty to preserve evidence is triggered when a lawsuit is threatened, filed, or reasonably anticipated.
> This is being painted as "Uber is being super slimy". Anyone who has sat through a trial having anything to do with electronic communications knows that it's a benefit to everybody if as little logging is done as possible.
That is entirely untrue. While records can be inconvenient, they can also be critical to the case of the party retaining them.
Does "We're going to be doing illegal stuff, so don't talk about it where the courts might hear" qualify as "Reasonably anticipated legal action"?
Sounds like the underlying implication of an ethics class. I think reasonable anticipation would be at the point that Uber knew or should have known they were deriving development from stolen material.
Per the article, legal experts seem to agree that the above is not true:
However, companies have an obligation to preserve records that may be reasonably seen as relevant to litigation or that fall under data retention rules set by industry regulators. In Uber’s situation, chat logs that could help get to the bottom of the trade secrets case are now inaccessible. Uber also faces a criminal investigation over the alleged theft.
“It’s a knotty question for courts and lawyers on when the obligation arises” to preserve records, said Julia Brickell, general counsel at the legal discovery firm H5. But “if someone uses a communication device to specifically hide information from litigation because you knew it would result in litigation, that would be foul from the start.”
...
An app such as Wickr “could be a way for Levandowski to communicate ‘By the way, how did we do that back at Waymo?’ and all that vanishes in 30 seconds,” [Judge] Alsup said. “To me it’s plausible that it happened. And the evidence is gone now. Because it was an intentionally set up system to not leave a paper trail.”
Federal civil court guidelines enable judges to tell jurors that they can presume that information covered up by a litigant and now missing would have been negative for that party, Brickell said.
Such a declaration could hurt Uber, as its primary defense has been that Waymo has turned up no concrete evidence of the trade-secret theft. Now, Waymo can claim that such evidence was simply deleted.
“That they were so concerned about covering things up meant that they could have known what they were doing was a crime,” said Nick Akerman, a lawyer at Dorsey & Whitney and a former federal prosecutor in Manhattan. “To me, that’s very powerful evidence.”
Given two identical actions, the law can find one illegal and the other permissible based solely on intent.
I, too, don't understand how this is a legal issue given that people can talk face-to-face, or over non-recorded voice services. If it's written communication, what if you're writing things on whiteboards?
How would this not set a legal precedent that essentially requires all communication be through Slack/etc?
Also, if anyone is interested in reading about it, I found this enjoyable article [1] about the topic.
[1]: http://fordhamlawreview.org/wp-content/uploads/assets/pdfs/V...
Business records are legally required to be retained for a period of time (which varies depending on its content). Failure to do so is a violation of the law, and is evidence against you in the event of a lawsuit.
I used to work in an industry where everyone from the local police all the way up tot he F.B.I. would routinely send us subpoenas. The corporate (big company - 30k employees around the world) policy was that we would delete all paper notes every seven days, and destroy anything recorded (especially videotapes) every 14 days. We were told this was specifically so we could dodge subpoenas, otherwise we'd drown in them.
My viewpoint is not at all IT related. I work in a heavily regulated industry and am required to do training a few times a year on data retention policies because of how much we are legally required to keep.
Is it really knotty though? Even I know that communication related to running a business must follow data preservation rules. It may not be massively illegal, but at its base using encrypted messaging in this manner is contempt, especially since they knew it could be used in litigation.
Once you have reasonable anticipation of future litigation, you are required to preserve evidence.
This why most litigation holds companies place do not let you delete emails, for example.
The purpose of discovery is to get all relevant evidence out in the open in order to help resolve the case.
These two things are true regardless of medium. IE If i am making phone calls that are relevant to litigation, and you otherwise would keep records or recordings of them, you must preserve them. I can be called to testify to them.
Use of mediums like this is a grey area, but that's irrelevant. You can argue till you are blue in the face that you have legitimate reasons to use self-destructing/encrypting mediums.
"Once a party has notice that litigation has been filed, courts uniformly impose a duty to preserve potentially relevant evidence on parties to the lawsuit. The duty “includes an obligation to identify, locate, and maintain, information that is relevant to specific, predictable, and identifiable litigation.” The duty applies only to relevant data, documents and things."
Remember that at one point, email preservation and other things did not exist. Courts forced companies to preserve that data: "To be sure, as part of a litigation hold, a company may be required to cease deleting e-mails, and to disrupt its normal document destruction protocol."
So let's turn to here. First, regardless of anything else, the use of anything with a specific goal of avoiding the duty to preserve evidence is going to be held against you. Full stop. It does not matter what that is.
So regardless of the medium in use here, that's problem #1. How far does anticipation of a lawsuit go?
In the oft-cited Zubalake decision, the court found that a company employer had a duty to preserve electronic records destroyed before an employee filed the charge of discrimination that triggered a government investigation because almost everyone with whom that employee worked anticipated she might bring a lawsuit. That is, the court held that duty to preserve attached at the time that litigation was “reasonably anticipated,” and that key company employees anticipated litigation months before the employee filed a charge of discrimination.
Boom. This case is pretty much already lost in those jurisdictions.
Problem #2 is what if the medium normally keeps no records. Again, if you did it deliberately to avoid discoverability, you are already going to lose.
It's true that there is no general duty to preserve, but once that duty kicks in, the fact that the medium is ephemeral is irrelevant. There is literally nothing that prevents preservation of evidence here other than desire. They could make records of conversations (screen grabs, what have you), they could record the ephemeral keys and data (they have physical access), and they could also tell people who they anticipate (above) to be involved in litigation to not use such mediums, and in fact, pretty easily force compliance.
I'm aware of zero cases that have said "yeah, it sucks that you lost those ephemeral messages", and plenty that have sanctioned as a result of failure to save. See all the linked cases in https://www.lexology.com/library/detail.aspx?g=f47f71d2-281b...
You should also realize that if these forms of communication become incredibly common, the discovery rules will adapt.
They have adapted as texting and instant messaging became more common, they will adapt as self-destructing messages become more common. That adaptation is not going to be "self-destructing messages get a free pass", it's going to be "you may be required to preserve keys"
And how are they supposed to record phone calls if they use "dumb" phones or personal smartphones?
At least if I received such an order I would stop using anything that can be saved (like email) and would discuss the problem only in person. Now go try to prove anything.
I understand that the court can order to preserve existing records. But this "reasonable anticipation" is clearly a gray area that can be interpreted any way and allows to make anyone guilty.
I understand the rules here quite well, being licensed in four states, many federal courts, etc.
"And how are they supposed to record phone calls if they use "dumb" phones or personal smartphones".
I said if they record, they would have to turn it over. Otherwise, yes, I will subpoena the records, including any relevant records from personal phones, if the relevant people use personal phones for business. I will then depose people as to the content of those calls if they are possibly relevant. Most will not lie. If they do it will go very badly for them.
Your plan of trying to hide stuff and lie in court is not going to go well for you.
You seem to desire a very adversarial civil system. It is mostly existing to resolve disputes. That requires getting all the evidence out on the table, partially in the hopes that both parties then decide to resolve it themselves. Which they mostly do.
Why did Uber fire Jacobs and then hire him again, as a consultant?
For snaps that are not saved, those are not retained on any server after their expiration.
Why would snap spend the money and/or hold the liability of keeping expired snaps stored... They know if it was all leaked they'd be done. And with the number of daily snaps, that would add up storage costs real fast or no reason.
How do you know?
> Why would [...]
Because you can't think of a reason it must not be true? Or are you claiming internal knowledge or taking the company's word for it? I don't know for sure what's retained, and therefore I won't go around saying I know.
The only fair assumption is that they store all videos. Remember that they are an ad business.
If it's too annoying, the wise decision would be to cut storage to only 1 month, or store only 1% of randomly selected videos. It will never be to stop storing videos.
Sarbanes-Oxley requires corporate record-keeping and outlaws interference with investigations. While it doesn't specifically mention ephemeral messaging, it would seem to preclude its use in anything business-related. So it's not "trying to prove a negative" so much as it seems to be saying these applications are illegitimate for business use period.
Depending on which Federal circuit applies, and how you authenticate to your device, only if they already had proof that your messages were material to the case. Unlocking your device (with a passcode or password, as distinct from biometrics) has been ruled to be "testimonial", so the State must have specific knowledge that your iMessage has inculpatory evidence in order to compel you to unlock it and hand those messages over.
(IANAL.)
Deleting data once litigation has been initiated is tampering/obstruction. Deleting data when not under litigation is the company's choice, with very few exceptions. Many companies explicitly require all communication be ephemeral - email, messaging, etc. it explicitly only preserved for X days and then deleted entirely from all systems.
If not, that would be an oil-tanker sized loophole for avoiding prosecution, and I don't think the folks crafting criminal evidentiary law were that dumb.
If you are under a litigation hold, you cannot delete any data. If you are not under litigation hold, and your policy is that you shred all your records every Friday at 3PM... The courts will not hold your lack of records against you.
Also SOX doesn't pertain here.
You don't have to hand over the incriminating evidence, or even tell the cops that you have it. But if they find out you did have it, and knowingly destroyed it to hide your illegal behavior, that is a legitimate additional charge.
> "This is not even a little bit true. What you're implying is that businesses are required by law to keep all internal communications in case someday there's litigation, and that is just flatly false. Deleting data once litigation has been initiated is tampering/obstruction. Deleting data when not under litigation is the company's choice, with very few exceptions. Many companies explicitly require all communication be ephemeral - email, messaging, etc. it explicitly only preserved for X days and then deleted entirely from all systems."
"That they were so concerned about covering things up meant that they could have known what they were doing was a crime"
When the government says "Only criminals want privacy. Why do you care about privacy if you're doing nothing wrong", every one is up in arms (and rightly). What happened now?
"However, companies have an obligation to preserve records that may be reasonably seen as relevant to litigation. Chat logs that could help get to the bottom of the trade secrets case are now inaccessible"
Why does someone automatically have a right to know what communication took place just because that knowledge would help incriminate the communicator?
There seems to be a double standard in the community here when it comes to privacy. Usually, everyone's all gung-ho about privacy and encrypted communication and VPNs that don't keep logs. At that time, no one seems to be concerned about who is using that encrypted channel and for what purpose. But now suddenly Uber did it and it's bad?
Because that seems tantamount to saying that literally any communication between employees of the company (even verbal) must be recorded? What if all this communication had happened between them in those 'long walks' they took in San Francisco?
One major difference between individuals and corporations is that you can not really jail a corporation (though you can jail execs, but this rarely happens) and running a company is a privilege, not an innate right.
So it stands to reason that if the law says you need to preserve your records that you do so in order to be able to hold the company accountable for its actions. Similar laws apply to your financial recordkeeping.
Willfully destroying evidence, whether you are a private individual or a corporation is going to be frowned upon by a judge anyway, the best way to avoid all of this is to simply not commit any deeds that could be labeled crimes.