FTC & DOJ: Companies Must Preserve Messaging App Data or Face Fines
The Federal Trade Commission (FTC) and the Department of Justice (DOJ) have issued a joint warning to companies, stressing the importance of preserving communications on messaging platforms. This includes both ephemeral and non-ephemeral messages sent via various apps. The agencies have highlighted the potential consequences of failing to comply, including civil fines and criminal prosecution.
Recent court rulings have held companies liable for not preserving text messages, Google Chats, and Signal messages. The FTC and DOJ have now clarified that preservation obligations extend to messaging apps like WhatsApp, Facebook Messenger, Instagram Direct Messages, and SMS. Companies must preserve data from the past 90 days.
Henry Liu, Director of the FTC Bureau of Competition, emphasised the need for companies to understand and preserve information on collaboration and messaging platforms used by employees. Both agencies have updated their standard preservation letters, specifications for 'second requests', voluntary access letters, and grand jury subpoenas to include instant messaging platforms. Preservation obligations arise when a company anticipates or learns of an investigation or litigation, requiring immediate action to disable auto-deletion functions and preserve communications. The DOJ has also updated its Evaluation of Corporate Compliance Programs guidance to consider the impact of messaging applications on a company's compliance program and response to investigations.
Companies are urged to familiarise themselves with these obligations and ensure they have robust systems in place to preserve relevant communications. Failure to do so could result in civil spoliation fines and even criminal prosecution. The joint statement from the FTC and DOJ serves as a clear reminder of the importance of compliance in this digital age.
