Self-destructing messages were once the realm of James Bond, Mission Impossible and Inspector Gadget. However, ephemeral messaging is now extremely common. Phone apps such as Snapchat, Cyber Dust, Tiger Talk, and Confide all allow users to send messages which disappear shortly after they are read or watched.
This has allowed users an unprecedented level of privacy in the messages they send. Services such as Cyber Dust and Confide encrypt your messages, prevent them from having a screen shot taken of them, and (of course) destroy messages you send shortly after they are read—keeping no digital record. Snapchat, while not as secure, still features messages which “vanish” after they are viewed.
The flip side to this privacy is an easy way to send messages that could never be used as evidence in a lawsuit. Cyber Dust was created after Mark Cuban’s experience in his insider trading lawsuit with the Securities and Exchange Commission (SEC). Mr. Cuban felt that the SEC mischaracterized every message he sent, so he made Cyber Dust to “save a lot of time and money because nothing sent or received on Cyber Dust is discoverable.” Cyber Dust is specifically pitched as the Snapchat for “a business with a lot of lawsuits.” Snapchat itself has been accused of being used a tool to conceal insider trading.
The evidence from ephemeral messages can often be crucial to cases. Just a few weeks back, an Uber driver sued a woman over brain damage he suffered when she hit his car from behind…while she was recording herself going 107 MPH with a Snapchat speed filter. The video that the woman took, actually recording herself hitting the Uber driver while simultaneously recording her reckless speed, would be incredible evidence in that case. However, due to the nature Snapchat, that evidence is likely gone.
Spoliation: Getting Rid of the Evidence
There is no universal duty to maintain anything that could ever be used as evidence. Making people keep every last document in case they get sued just doesn’t make sense. In fact, most companies have policies regulating what records they maintain and when records should be destroyed. However, there are situations where destroying or withholding evidence can get you in trouble—this is called spoliation of evidence.
A person who negligently or intentionally withholds or destroys relevant information that will be required in a lawsuit is liable for spoliation of evidence. To determine whether somebody has committed spoliation, courts look to three things: 1) whether a duty to preserve evidence attached before the evidence was destroyed; 2) whether the person accused of spoliation was at least negligent in destroying the evidence; and 3) the other party was prejudiced by the destruction of the evidence.
Whether the duty to preserve evidence takes effect varies substantially between state and federal law and from state to state. The duty can take effect when you first should know you’re likely to be sued for something or when you actually receive notice of a lawsuit against you. Once you’re under a duty to preserve evidence, you can’t destroy or hide evidence relevant to the lawsuit you know of or are expecting.
When a court finds that somebody has committed spoliation, the court can bring a number of sanctions against them. The exact breadth of sanctions varies depending on what court you’re in, but a common sanction is applying a “negative evidentiary inference.” This means that a jury can assume that the evidence the person destroyed would have been bad for that person.
There are exceptions for destruction of evidence as part of a routine, good faith operation of an electronic information system. However, destruction of records after you know about a lawsuit or likely lawsuit —routine or no—is often as bad faith and sanctioned. Ephemeral data—such as information stored in RAM—has also been treated differently from normally stored electronic data. The evidence was treated differently because it would require a Herculean effort to preserve. However, no court has ever dealt with the obligation to preserve where the data you send self-destructs by design.
Courts have dealt with people deleting social media content in the past. They specifically ruled that deleting either Facebook posts or a Facebook account can be spoliation. Current law leaves it unclear whether use of ephemeral messaging, like Snapchat, will leave the user in danger of spoliation sanctions. By using Snapchat, you are creating an electronic message with the knowledge it will be destroyed. If this is done with relevant evidence after a duty to preserve takes effect, this is arguably spoliation.
Are Snapchats Spoliation?
As it is, spoliation law isn’t really prepared to deal with ephemeral messaging on such an enormous scale. The law is just unclear enough to put people and businesses using the services in a sticky situation. If there’s a chance that sending that Snapchat will leave you in trouble in front of a judge, using the services can become a risk not worth taking.
The idea behind sanctioning people who commit spoliation is that their destruction of evidence implies a guilty conscience. Do users have such a guilty conscience when they send relevant evidence via a means they know will self-destruct? Cyber Dust’s pitch, promising its users messaging that can’t be used as evidence against them, certainly makes this argument at least believable.
The exception is for routine, good faith, deletion of electronic records. Where an electronic messaging service automatically deletes all messages, that deletion is certainly routine. However, after you know of a lawsuit, is sending a message with relevant evidence via a means you know will self-destruct good faith? The exception explicitly doesn’t apply where routine operation is used to hide evidence.
What’s more, courts have sometimes required people to prevent the deletion of otherwise routinely deleted data in order to avoid spoliation sanctions. How could a user of Snapchat or Cyber Dust preserve something that is designed to disappear?
There is a clear tension between the dangers of compromising the privacy offered by ephemeral messaging and the dangers of allowing some users of ephemeral messaging to shelter from justice by actively destroying evidence. Putting every user of ephemeral messaging services at uncertain risk of serious evidentiary sanctions is obviously not an ideal solution. However, neither is allowing messaging services to shelter users from legal repercussions for illegal actions.
It is likely that a determination of whether sending any given ephemeral message could constitute spoliation would be highly fact specific. However, as it stands, the framework around the treatment of ephemeral messaging is so unclear as to leave parties incapable of entering a courtroom fully prepared. It is high time that law catches up with technology. Snapchat and ephemeral messaging have been around for over half a decade.
In order to truly know whether use of ephemeral messaging services are spoliation, two things need to be firmly established. First, the exact classification of ephemeral messages. Whether they will be treated like other types of ephemeral data or like other types of social media. Second, whether their deletion is routine and in good faith. Seeing as it is nigh impossible to preserve ephemeral messages, will sending them be subject to an exception to spoliation? Until this murky area of law is cleared up, users of ephemeral messaging services will be forever left in the lurch.