FTC & DOJ Clarify Messaging Platform Preservation Obligations
The Federal Trade Commission (FTC) and the Department of Justice (DOJ) have issued a joint statement clarifying preservation obligations for companies using messaging platforms like Slack and Google Chat. The update includes guidance on preserving communications across various platforms, with potential penalties for non-compliance.
The FTC and DOJ have updated their standard letters and specifications to include messaging applications in preservation obligations. Companies using platforms such as Telegram, WhatsApp, Slack, Signal, Microsoft Teams, text/iMessage, and Twitter for work-related communications must retain all relevant chats, messages, and metadata. This applies to both ephemeral (temporary) and non-ephemeral communications.
Companies should disable auto-deletion functions once preservation obligations are triggered, which can happen when an investigation or litigation is anticipated or underway. Failure to preserve communications may result in spoliation of evidence, civil fines, or even criminal prosecution. The FTC's Hart-Scott-Rodino (HSR) second request now defines Messaging Applications to include platforms for both ephemeral and non-ephemeral messaging.
The FTC and DOJ stress that innovative communication technologies present challenges in preserving employee communications and company documents. Companies should understand their employees' messaging and collaboration platforms to ensure information is preserved when needed. The joint statement serves as a reminder of the importance of compliance with preservation obligations to avoid potential legal consequences.
