FTC and DOJ tell firms: find ways not to delete internal chats

Having faced trouble in their Google and Amazon antitrust lawsuits, US federal regulators have now officially warned companies not to delete chats and preserve conversations even in ephemeral messaging platforms.

Ephemeral communications exchanged between parties or systems are designed to be nearly instantaneously and automatically deleted and leave no trace. In some popular apps, messages are ephemeral by default.

Undoubtedly, it’s good for privacy. But what about when federal agencies need the content of these exchanges for their investigations? The information that employee communications provide within relevant time periods could be invaluable as evidence in court, for example.

This is essentially what happened when the Department of Justice and the Federal Trade Commission tried to take on Google and Amazon, respectively, in 2023.

Amazon was accused of deleting more than two years' worth of internal Signal employee chats after the FTC started a multi-state antitrust lawsuit – obviously, in order to thwart it.

The DOJ accused Google of lying when it claimed that it auto-suspended its chat auto-deletion feature – besides, the department claimed Google had trained employees to delete internal chats because it actually anticipated facing antitrust litigation in the future.

Now, federal agencies are taking steps to prevent this kind of digital spoliation. In press releases, the DOJ and the FTC announced that they updated the language in their preservation letters and specifications – documents they send to firms under federal investigations.

The new language updates evidence preservation procedures to cover modern tech stacks such as Slack, Microsoft Teams, and Signal. As mentioned, some of these technologies allow or automatically enable immediate destruction of communications and documents.

“Documents created through the use of these technologies have long been covered by FTC and DOJ document requests. However, companies have not always properly retained these types of documents during government investigations and litigation,” the FTC said.

Companies that receive subpoenas or other legal notifications will have to take steps to preserve chat logs and disappearing IM messages. Firms that fail to comply will be charged with obstruction of justice.

"These updates to our legal process will ensure that neither opposing counsel nor their clients can feign ignorance when their clients or companies choose to conduct business through ephemeral messages," said Manish Kumar, deputy assistant attorney general of the Justice Department’s Antitrust Division.

“The Antitrust Division and the Federal Trade Commission expect that opposing counsel will preserve and produce any and all responsive documents, including data from ephemeral messaging applications designed to hide evidence. Failure to produce such documents may result in obstruction of justice charges.”