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Comment by Analemma_ | Hacker News Reader

For iMessage specifically (which is not ephemeral), the judge would just order you to unlock your phone and show the messages, or provide your iCloud password, and jail you for contempt if you refused.

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.

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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.

IANAL, but I'm pretty sure the laws around tampering with/destroying evidence are crafted in such a way to make knowingly destroying evidence of a crime — even before that crime is under investigation — unambiguously illegal.

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.

IANAL, but it is an oil-tanker-sized loophole - as is conducting all your criminal dealings via in-person communications, instead of e-mail.

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.

Litigation holds are a thing in civil law. Evidentiary rules in criminal law are, AFAIK, a different beast.

IANAL, but I thought Sarbanes-Oxley only applied to public companies, which Uber isn't.

> the judge would just order you to unlock your phone...

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.)

You can, but pleading the Fifth on a civil case can be held against you (adverse inference). IANAL as well.

iMessage can be deleted with no trace. If messages don't exist there, can you assume that they were deleted? That's basically what the judge is saying. What if a company has a deletion policy of 6 months, and someone starts litigation after 2 years, can the judge assume that any evidence was deleted as opposed to not knowing if evidence even existed?

Also SOX doesn't pertain here.

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