When you first hear about “auto-deleting” or “ephemeral” messaging, you may think of nefarious techniques to hide evidence of wrongdoing. In fact, ephemeral messages – which are typically end-to-end encrypted and set for deletion shortly after they are sent and/or read – in various forms are routinely used for business and other relevant communications. That means that they must be considered for preservation and potential disclosure, raising all sorts of legal, technical, and optical considerations. This came up recently in Federal Trade Commission v. Noland, No. CV-20-00047-PHX-DWL, 2021 WL 3857413 (D. Ariz. Aug. 30, 2021), where the court considered the use of ephemeral messages in the context of an investigation by the Federal Trade Commission (FTC) of the company Success By Health (SBH) and its officers for a potential pyramid scheme. The day after learning of the inquiry, the officers switched from their existing communication means (WhatsApp and iOS messages) to other encrypted mobile messaging apps including Signal, which they set to “auto-delete” all messages on reading. Company leaders exchanged thousands of such messages over many months, despite the FTC’s instruction to preserve documents and suspend ordinary-course document destruction. Further, defendants colluded to remove all traces of the apps and messages from their phones right before turning them over for inspection. The truth came out when the FTC received anonymous information alerting it to the undisclosed use of the apps. On the FTC’s motion against defendants for sanctions, District Court Judge Lanza found defendants had intentionally deprived the FTC of relevant documents, and sanctioned them under Fed. R. Civ. P. 37(e)(2) with an adverse inference that the spoliated evidence was unfavorable to the individual defendants.
Examples of Ephemeral Platforms