According to the American Sociological Association, online content has become instrumental in modern legal cases. One case study showed that 64% of judges used social media evidence to support “not guilty” verdicts in sexual harassment cases. Another study showed that out of 198 gang indictments involving social media evidence, 190 led to convictions. Not only is social media prominent in criminal cases, but also plays a critical role in civil cases. The fact that online content is such a major focus in modern legal cases should come as no surprise, as Pew Research estimates that about 70% of all Americans today use social media. Often, attorneys on both sides of a case race against one another to find, record, and file digital evidence. This is why timely capturing is so critical in the modern legal world.
Many things in life can be defined as ephemeral, including fashion trends and annual flowers. When something is “ephemeral,” it only lasts a short amount of time. When using the word “ephemeral” in casual conversation, the specific amount of time may be vaguely defined.
In the specific context of online content circulation and management, however, in recent years ephemeral has come to have a much narrower definition. Ephemeral online content vanishes within 24 hours. Once this time limit has elapsed, users cannot access or view the content ever again.
Here are a few examples of ephemeral online content:
Note that almost all modern messaging apps have some variation of Instagram’s “vanish mode.” Other examples include Telegram, WhatsApp, Confide, and many others. In addition, ephemeral content may have a much broader definition in some circles – applying to content that vanishes eventually (but not necessarily within 24 hours). Ephemeral may also vanish automatically or manually.
Ephemeral content, even when understood in the broader sense, poses a number of challenges for attorneys during the discovery phase. These challenges are intensified for ephemeral content that meets stricter, 24-hour criterion that has emerged in the wake of Snapchat and other early innovators in the area of limited-duration content.
The most obvious challenge posed by ephemeral content is its accessibility. The nature of the posting and management software ensures that after the content disappears, access becomes extremely difficult. Even if attorneys enlist the help of the most sophisticated forensic experts, ephemeral data from some apps may be lost forever.
Ephemeral content is still relatively new, and existing regulations may not be clear. Various agencies have commented on the use of ephemeral content, linking it with organized crime, the spread of misinformation, and foreign espionage. The Securities and Exchange Commission suggests that ephemeral messaging may violate SEC regulations against anonymous communication for certain employees. The Department of Justice states that in the context of ephemeral messaging, “[a] company’s answers – or lack of answers – may very well affect the offer it receives to resolve criminal liability.” Despite these comments, there is very little clear messaging regarding the regulation of ephemeral content.
In addition, for individuals and entities operating within the United States, ephemeral content has the potential to raise a number of First Amendment issues. One might argue that there is no difference between having a private verbal conversation and speaking with someone through an ephemeral messaging app, a feature which leaves the suggestion of official regulation open to accusations of governmental overreach.
Further complicating any discussion of regulating ephemeral content is a general recognition that people do not always use ephemeral messaging for nefarious means. The history of jurisprudence in the United States and many other nations weighs against unnecessarily regulating the personal communications of private citizens, regardless of the medium of that communication. Some individuals may simply prefer to use certain apps due to their user interface or the popularity these apps enjoy within a peer group. On the other hand, ephemeral messaging offers undeniable advantages to those engaging in unlawful activities.
The very ubiquity of ephemeral content in day-to-day interpersonal communications that gives potential regulators pause also makes this form of content a rich source of evidence in many legal contexts. Besides providing direct evidence of criminal conduct or premeditation, ephemeral communications can also help to corroborate accusations of infidelity in divorce cases, document a history of employee harassment, or demonstrate that an individual who claims to have had no knowledge of activities that have come under investigation was in fact aware of them all along.
While capturing ephemeral content may be difficult, it is far from impossible. Plaintiffs and defendants alike may screenshot online content that they believe could be important at a later date – in the process preserving this evidence for review by any legal counsel they retain. However, using screenshots as a sole collection method for ephemeral content has serious limitations.
Some apps notify users when their content has been subject to a screenshot, potentially warning the original poster and limiting the gathering of further evidence. Other apps may disable screenshot functionality entirely. That said, these additional layers of security are not altogether impervious. One can use a second device to photograph the screen that displays the ephemeral content.
More importantly, screenshots presented as evidence in a legal setting presents serious risk. Screenshots often result in reduced image quality or missed content. Additionally, screenshots alone do not include relevant metadata such as IP, time stamp, hash values, and more needed to authenticate the evidence. Users taking screenshots and saving to their local device are now in the chain of custody requiring further certification on the process in which this was collected. Depending, on the extent of the display captured, this leaves doubts as to the currency and authenticity of the content captured, opening the door to this evidence being challenged or dismissed all together. Screenshots must be properly authenticated before submitting as evidence.
When attorneys rely on their clients to take screenshots of potential evidence, this strategy is always reactive in nature. Users must wait until important content appears, hastily snapping screenshots before it disappears forever. There is always the chance that they may miss this critical opportunity. Therefore, a proactive strategy is much more effective.
While attorneys may rely on timely capturing to gather potentially critical evidence, this proactive strategy has many other applications. An employee or entrepreneur may wish to keep communications confidential to protect intellectual property and trade secrets. By capturing and saving their ephemeral messages automatically, they can maintain this privacy while still providing communications records to the DOJ or SEC upon request.