It Was Here a Second Ago: North Carolina Discovery andEphemeral Messaging Apps

Ephemeral messaging apps allow users to send and receive text messages that disappear after being read. How might such technology impact the practice of law, especially as it concerns discovery? This Article defines ephemeral messaging apps, reviews recent discovery litigation in North Carolina for possible points of application with ephemeral messaging apps, and analyzes the North Carolina Rules of Civil Procedure and the North Carolina Rules of Professional Conduct in light of ephemeral messaging apps. This Article also examines how other, out-of-state courts have dealt with ephemeral messaging apps in the context of discovery and makes some practical suggestions on what North Carolina courts might or should do when faced with ephemeral messaging apps and their use by attorneys or litigants in North Carolina

Now You See It, Now You Don\u27t: The Emerging Use of Ephemeral Messaging Apps by State and Local Government Officials

Public access to government-related information is essential in a democracy. The public expects state and local governments to function in an open and transparent manner to ensure accountability. All fifty states have adopted statutes that provide public access to government-related information. However, these statutes have not kept pace with changing technology. The emerging use of ephemeral messaging apps by state and local government officials presents an especially difficult problem. Ephemeral messaging apps are typically used on personal electronic devices, such as privately-owned smartphones. Unlike traditional text messages, however, ephemeral messages cannot be stored and subsequently accessed by the public. Rather, ephemeral messages self-destruct shortly after they are accessed by the recipient. Thus, it is not clear if ephemeral messages are public records—even if the messages pertain to government-related actions. A pending lawsuit in Missouri that pertains to the use of an ephemeral messaging app by former Governor Eric Greitens and members of his staff may be the first case in the nation to address this issue at the state and local level. Two recent state supreme court decisions from California and Washington concluded that traditional text messages that pertain to government-related actions may be public records even when they are retained on personal electronic devices or on third-party servers. These court decisions may provide some useful guidance with respect to ephemeral messages, but there are some key distinctions between traditional text messages and ephemeral messages. To avoid ambiguity and litigation, state legislatures should revise their public records statutes to make it clear that ephemeral messages that pertain to government-related actions are public records. If ephemeral messages cannot be stored and retrieved to ensure public access to this information, state legislatures should restrict the use of ephemeral messaging apps by public officials

Killer Apps: Vanishing Messages, Encrypted Communications, and Challenges to Freedom of Information Laws When Public Officials Go Dark

Government officials such as White House staffers and the Missouri governor have been communicating among themselves and leaking to journalists using apps such as Signal and Confide, which allow users to encrypt messages or to make them vanish after they are received. By using these apps, government officials are going dark by avoiding detection of their communications in a way that undercuts freedom of information laws. This article explores the challenges presented by government employee use of encrypted and ephemeral messaging apps by examining three policy approaches: (1) banning use of the apps, (2) enhancing existing archiving and record-keeping practices, or (3) legislatively expanding quasi-government body definitions. Each of these approaches will be analyzed as potential ways to manage the threat presented by “killer apps” to open records laws

Self-Destruct Apps: Spoliation by Design?

The Federal Rules of Civil Procedure are at risk of being out of sync with current technology trends. In particular, ephemeralmessaging applications, or “self-destruct apps,” are changing the way we conceptualize digital records. These apps embrace the industry goal of “privacy by design,” a positive trend in minimizing the amount of data that is created and stored. Civil discovery, on the other hand, contemplates data retention and preservation, particularly as to electronically stored information. This Article identifies the conflict between privacy by design—particularly self-destruct apps—and the civil discovery rules. It cautions against treating self-destruct apps as spoliation by design and instead notes that, in some contexts, ephemeral messaging may be more akin to live conversation than electronic records

Forget-me-not: History-less Mobile Messaging

Text messaging has long been a popular activity, and today smartphone apps enable users to choose from a plethora of mobile messaging applications. While we know a lot about SMS practices, we know less about practices of messaging applications. In this paper, we take a first step to explore one ubiquitous aspect of mobile messaging – messaging history. We designed, built, and trialled a mobile messaging application without history—named forget-me-not. The two-week trial showed that history-less messaging no longer supports chit-chat as seen in e.g. WhatsApp, but is still considered conversational and more ‘engaging’. Participants expressed being lenient and relaxed about what they wrote. Removing the history allowed us to gain insights into what uses history has in other mobile messaging applications, such as planning events, allowing for distractions, and maintaining multiple conversation threads