White Collar Alert
3 minute read | March.16.2023
The Department of Justice recently announced new policy changes relating to its evaluation of corporate communication policies. The DOJ’s new guidance makes clear that, when evaluating the adequacy of corporate compliance programs, prosecutors will be assessing whether corporate communication policies are tailored to ensure the adequate preservation of all business-related electronic data and communications. Prosecutors will place an increased focus on the preservation of communications made on third-party messaging applications and personal devices, including whether corporate policies on data preservation have been adequately communicated and enforced within the company.
Here are three things for companies to consider after the DOJ’s announcement.
1. Robust Review of Corporate Communication Policies
Given the new policy changes announced by the DOJ, now is the time for companies to do a comprehensive review and evaluation of their corporate communication policies. The use of third-party messaging platforms has taken off in recent years and has led, in practice, to increased professional efficiency in many ways, but also decreased formalities surrounding business communications. Companies should consider their particular business-needs and ensure they are comfortable with the current communication channels being used to conduct business within their workforce.
Companies should take the time to ensure that their preservation policies are sufficiently robust and govern corporate communications done on third party messaging apps and personal devices, as well as devices that are being replaced. If a company has a “bring your own device” program, they must implement clear policies to ensure the data on those devices is still accessible and is adequately preserved. Similarly, the rationale behind any corporate policy on the permissible deletion of electronic data must be clearly documented in corporate policies.
2. Enhanced Communication and Training on Corporate Communication Policies
Companies should ensure their corporate communication policies (especially any changes made to those policies) are clearly communicated to their workforce. Employees should have a clear understanding of the communication channels that may be used for professional communications, including the company’s stance on the use of informal text messaging and third-party messaging applications. All employees should receive regular training on preservation policies, including the use of litigation holds. Prosecutors may consider any failures to timely implement litigation holds within the company when considering charging decisions and plea agreements.
3. Companies should reevaluate the use of ephemeral messaging
Ephemeral messaging applications offer users the ability to set disappearing messages that automatically delete after a specified time period. The use of ephemeral messaging apps has risen due to the added security and anonymity they provide. WhatsApp, for instance, allows for the use of disappearing messaging and end-to-end encryption, meaning no one except the sender and recipient can read messages. Prosecutors are likely to be increasingly skeptical of the use of ephemeral messaging apps, and companies should have a clear business need should they chose to use them moving forward.