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Comment by auggierose | Hacker News Reader

Not familiar with the details in this case, but it makes total sense to me that an "off the record" chat doesn't need to be preserved, even by a court order to keep all records. Let's assume there is a chat app that is officially designed to be off-the-record, and everyone who uses it assumes it is off-the-record. Let's assume technology-wise, there are indeed no records kept, everything is ephemeral. Should the court order then apply to those chats? I don't think so, just as a court order doesn't apply to a live conversation which isn't recorded. Now assume that the programmer of the app made an error, and accidentally records are kept for 24 hours. Should the court order now apply to those records? Doesn't seem to be a clear-cut case to me.

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> it makes total sense to me that an "off the record" chat doesn't need to be preserved, even by a court order to keep all records. Let's assume there is a chat app that is officially designed to be off-the-record,

You cannot officially designate anything to be "off the record". That's just not a thing that the legal system recognises - the closest thing might be attorney-client privilege, and that's not relevant here, so none of your analysis applies.

You are answering your own question yourself. Read carefully and notice how you use the world record in your post.

> Let's assume technology-wise, there are indeed no records kept, everything is ephemeral. Should the court order then apply to those chats?

No, there is no record to be kept.

> Now assume that the programmer of the app made an error, and accidentally records are kept for 24 hours. Should the court order now apply to those records?

Yes, the court order applies indiscriminately to all records no matter why or how they were made.

Let's assume I said this instead:

> Now assume that the programmer of the app made an error, and accidentally DATA is kept for 24 hours. As part of the error, the DATA is also automatically deleted after 24 hours.

What now?

Nothing changed. You know it’s a record. That’s why it’s the word you naturally used to describe it. It’s not some kind of complex trick question.

I don't know it's a record, it's just a word I used. Now I use a different word, which is more appropriate in the context of a HN reader trying to misunderstand what I am saying. Because the question is exactly: Does this data constitute a record, or not? Just saying it does is not an answer.

It does constitute a record. You yourself spontaneously used the word record to talk about it. No one is trying to misunderstand what you are saying.

You want there to be some kind of big tricky debate to be had about what kind of data is or isn’t a record. There is none. People know what a record is and when they encounter one. If you are storing something for a time, you have a record of it. It really is that simple.

It's not that simple at all, especially in combination with automation and computing. What you are saying is that it is not possible to have an off-the-record chat app, because the data of the app will ALWAYS be stored somehow, even if it is just in RAM. Would you agree that this is what you are saying?

Maybe the world is just more complicated than you'd like to admit.

> What you are saying is that it is not possible to have an off-the-record chat app

No, it’s not at all what I’m saying.

What I’m saying is that if you are keeping records of what’s said for a time like most chat apps do then these records are indeed records and no amount of hypothetical distorting regarding RAM or amount of time or what not will change the fact that they are records and you will have to keep them if the court tell you to do so.

If you were using a P2P messaging app where no storage was done at all at any point then you would have no record. It’s not that complicated honestly. Just don’t keep records if you don’t want there to be records.

First of all, I think Google deliberately played games and they should get smacked hard for this.

But ... its not that simple any more.

A lot of the time, apps will be hibernated/suspended to disk, and then restored from disk. So talking about ram and storage in context of devices its kind of hard. Even some browsers now "suspend" your tabs to ssd, and then resume when you click back to them. So it's kind of hard to say if something was never on the disk or not.

I guess you could go with intent, that either app intentionally stored something or not, but then again you also design apps with suspend in mind so not sure how this one would play out.

Off the record chat is about encryption and MITM rather than retention. https://en.m.wikipedia.org/wiki/Off-the-Record_Messaging

Interesting, but really not relevant.

It's very clear-cut. The topic is about deleting data.

There's a massive difference in deleting records that did exists vs. records that never existed in the first place.

The former is deleting data, the second case isn't.

I think I explained why it isn't that clear-cut, even when it is about deleting data. I guess that's why there are courts, and not only HN opinions.

It is clear cut.

Let's give you a concrete exemple we have had rulings on without any computer involved, which are almost a 1:1 situation: you are on litigation hold, and aren't allowed to destroy any records. You do an oral meeting, with no plans to put it on paper.

Unknown to you, someone took notes during the meeting, say your secretary because she didn't feel well that day and wanted to be sure to remember it the next day.

Although those notes were not planned to exist, once they do destroying them is destroying records, and you're in violation of the litigation hold.

You may not notice her take note, and then see her pull the notes our of her bag the next day and at that point it's illegal for you to ask her to destroy them.

What if she used the notes, and then destroyed them herself, without me ever noticing anything?

It's still a violation by the company. For obvious reason, otherwise you find a "fall guy" to do just that and "oh I was not aware I shouldn't delete this stack of documents".

I'm not sure that's a comparable situation as someone explicitly took an action to make a record. In the case of Chat it's all software automation. No one is explicitly taking an action to make a record or destroy a record.

There is the whole situation of people asking to switch to the no history mode, but that's not retroactively applied and it's really no different than sending an email that says "let's talk about this over the phone".

The real open question is whether Chats can have a temporary nature to them as they are inherently a written record. But there's also other situations where you can have a written record, for example, if someone uses auto-captions on a video call. They're very short-lived, but they did exist for some duration.

> I'm not sure that's a comparable situation as someone explicitly took an action to make a record. In the case of Chat it's all software automation. No one is explicitly taking an action to make a record or destroy a record.

I am not sure why you are making this distinction when it doesn't exists.

Litigation hold also means stop all software automation that would result in destruction of record, doesn't matter how many people know about it. Case in point: that is what happens to their 30 days old chat. This is the same thing if you trigger a litigation hold on your office365 account or whatever.

And for the rest of your point: not only does the law not accept the "oh but I didn't know", for the obvious reason that then it's an easy out, but even if they did tolerate extreme exemple of it Google cannot in good faith claim lack of knowledge about THEIR OWN system, the litigation hold was not for those specific people who may or may not know it, it was for the company who is then in charge of ensuring their IT team does what the court ordered.

I don't see where I stated that anyone was claiming ignorance. My point still holds: users had the option to create a record, but it was not the default. From that perspective the comparison provided does not hold.

The real debate is about whether "off the record" text can exist at all, and if so, under what conditions/duration? Are captions on a video call a text record? Do those need to be retained?

Is this maybe a case where you may be mistakenly confusing record in the technical / computer sense, as opposed to record as meant in the legal sense ? Because your three last questions do not make sense in the legal view.

> The real debate is about whether "off the record" text can exist at all, and if so, under what conditions/duration

This question makes no sense, as you what you are asking is "can i not make a record, when i make a record of something to transmit it to someone else"

> Are captions on a video call a text record? Do those need to be retained?

Yes and yes, of course. It's legally a record. Again, this questions makes very little sense legally.

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