Electronic Data Records Law | How to Win E-Discovery

Archive Facebook Business Messages

Employee Policy

Professionals, business people, and government employees are increasingly using Facebook and other social media for official business, often as agents of their employers.  Commonly, the employers are required or well-advised to make and keep records of the employees’ social media communications. 

This issue arose in a workshop that Messaging Architects and I led at a sizable enterprise (having about 8000 employees).  The purpose of the workshop was to establish policy on the retention of electronic records. The workshop pulled together representatives of disparate stakeholders within the enterprise, including the IT, legal and compliance departments.

Workshop participants, including representatives from human resources, feared that employees would ignore a policy that forbids them from using text messages, Facebook and Google Buzz to transact business.  So the workgroup drafted this language for adoption as HR corporate policy: 

“If an employee uses electronic messages for business, outside an enterprise email system account, the employee is expected to strive to make records of the messages such that they are within the control of the enterprise.”

Dear Reader:  What do you think of such a policy?

Next question:  Speaking practically, how would an employee make and keep records of Facebook communications?  I don't have all the answers, but here's a step to consider:

Facebook allows a user to submit many of his postings via email. So at http://www.facebook.com/mobile/?v=web Facebook shows the user that if he sends some text to a special email address, then the text will be posted as coming from the user. 




















For example,  . . .   here is a screenshot of a message I posted from my email account:









Facebook posts this kind of incoming email as a status update to the user’s Wall.  Note that when a user like me submits text via email, the only text that appears on the user’s Wall (status update) is the text in the subject line of the user’s email. If the user writes anything in the content of the email, Facebook seems to ignore it and seems not to post it.

Thus, in the example above, I wrote all the text in the subject line of the message from my email account to my FB account.

If an employee were to submit to FB by way of her employer-controlled e-mail account, then the account would retain the submission according to whatever record retention/destruction policy the employer has set – 90 days, seven years, or whatever. [Interesting questions: In the employer's email system, are there limits to the number of characters that can be transmitted in the subject line of an outgoing message and can be stored in the record of that message?]

A FB user can submit more than text from his email account. The FB user can also submit a photo (or even a video). FB posts the photo on the user's Wall, with text taken from the subject line of the email. For instance:


















So . . . the above is one convenient way for a business professional to store her Wall posts into her employer's email system, such that the posts will be preserved for audit, inspection, supervision, ediscovery, litigation hold and the like. 

I argue that email archives are the starting place for any enterprise that wishes to maintain electronic records for legal compliance purposes.  I argue the same goes for Twitter.

My ideas here leave scads of answered questions, such as how to record comments that others post on the user's Wall.

–Benjamin Wright

Mr. Wright teaches IT and records management law at the SANS Institute, where social network law is part of the curriculum.  He chairs a (proposed) SANS conference on e-records and e-discovery slated for Las Vegas, September 2010.

Update:  Cutting-edge Web 2.0 lawsuit.

City Government | Deleted Official E-mails

Expensive Forensic Recovery | Political Cover-up? | State Retention Schedule

Compliance with e-mail retention law is not easy.  Email in an enterprise like a municipal government is voluminous.  And at city hall failure to keep required electronic mail records can look like a scandal, where it appears officials are trying to cover-up the truth about something important.

Hence, the City of Boston has hired a forensic specialist to attempt to recover the destroyed e-mails of an aide to the mayor.  As part of the specialist's investigation, he or she might look on PC hard drives and in network backup tapes to locate erased records.

Forensic retrieval of email is costly.  The expense of forensics quickly exceeds whatever the city might have been saving by not implementing a comprehensive email archival system in the first place.  Had the city foreseen it would eventually be forced to restore deleted e-mails, it would have readily seen the need for good archival as a matter of good IT management.

The city did have an archival program, but it only pertained to emails that had resided in a user’s inbox for more than 90 days.  In other words, the program gave decision-making responsibility to users.  If users decided to delete records before 90 days, then the records would not be archived.  Among the problems with giving users such decision power is that users are rarely qualified (and rarely have the time) to exercise the required judgment.  Further, a user has a conflict of interest.  If a record reflects negatively on the user, she naturally prefers to destroy it.

Generally speaking, the Massachusetts state record retention schedules applicable to city government require that email correspondence of “no informational or evidential value” be retained a minimum of two years. 

But just instituting a policy that all e-mail be kept two years does not solve all of the city’s record retention problem.  Many e-mails must be retained for various longer periods, depending on content.  To examine email content and determine that this record needs X retention period and that record needs Y retention period is very, very difficult in practice.  In fact, I am skeptical that such one-by-one examination can be done effectively in government across many users over an extended period of time. (If you dear reader know of any case study showing it can be done, I cordially invite you to point me to that study!)

Under the auspices of Messaging Architects, I led a workshop on this topic with the stakeholders (IT, HR, legal department et al) in Jackson County, Oregon, February 2009. The conclusion was that the county government would archive all e-mail (spam excluded) more or less indefinitely.

–Benjamin Wright, Senior SANS Instructor for e-Discovery and e-Record Retention Law

Destroy Backup Tapes, Obstruct Justice?

Canada | Politician Emails Lost?

Which employee wants to be the target of a criminal investigation into whether public record e-mails were wrongfully destroyed?  Observers of a political corruption lawsuit in British Columbia were shocked to learn that – while the well-known lawsuit was pending – IT employees destroyed backup tapes  containing key e-mails by executives (i.e., government officials negotiating the sale of the then-government enterprise, BC Rail).  

This kind of news sounds sensational in the press.  The public naturally wonders what the justification was for erasing records.  How much does it cost, citizens ask, just to retain some tapes a few more years?  Did someone apply a record destruction policy as a convenient way to eliminate embarrassing evidence?  Should the employees not have observed a "legal hold" (also known as "litigation hold") on the records?

Such destruction of records, during an on-going prosecution, could be grounds for a criminal investigation into obstruction of justice, said a local expert quoted in the BC news media.

Such destruction of records may also qualify as spoliation, worthy of sanctions by a court.

Easy to Write Policy | Hard to Follow

In the field of records management, it is easy to write a policy that says an enterprise will destroy records like email regularly, but will apply a "legal hold" when a lawsuit or investigation arises.  However, in practice, to institute a legal hold is hard.  It is hard for the responsible employees to understand when and where they need to apply a litigation hold. 

Consider this issue from the perspective of employees in government agencies or other large enterprises.  They don’t want to do anything illegal.  But for an employee to stay fully informed of all pending lawsuits and investigations (even well-known ones) can be very difficult in practice.  Many employees who have control over email records do not know all of the matters to which they many pertain.

Safer Course

From the perspective of employees, the safer course of action is to retain electronic records of executives generously, for a long time.  Modern technology is causing the cost of email retention to drop. To retain a lot of e-mail is not as expensive as retaining a lot paper holding the same content.

–Benjamin Wright

Mr. Wright teaches e-records management and cyber investigations law at the SANS Institute.

Data Loss Prevention Strategy

Transparency as Compliance with Data Security Regulation

How are data holders to comply with the swelling riot of data security laws?  These laws include breach notification laws, which require that individuals and/or government be notified when the security of private data has been compromised.  Perfect compliance is impossible.

Almost all the states have adopted breach notice laws – though they are not uniform – and legislatures are expanding the scope of the laws.  

The original law from California (effective six years ago) focused on identity information – name plus social security number, driver’s license number or financial account number.  Then the California legislature expanded its law to also include breaches of medical data. That expansion became effective January 1, 2009.  Result?  In the first five months of 2009, California authorities were notified of a whopping 823 healthcare data breaches, mostly through self-reporting by healthcare entities. That’s just one industry, in one state, in five months.  And California authorities anticipate that the flow of notices will rise as people in the healthcare community become better aware of the new law. 

A data breach can occur in myriad ways:  a misdirected fax or e-mail, a hacking incident or snooping by an employee.

Meanwhile, we see floods of breach notices issued in other states and other industries – retail, nonprofit, colleges, financial, professional services, water districts, school districts, county government, municipal government, state government, federal government.  No organization is immune.  As these laws sit longer on the books, the flow of notices grows larger and larger.

Why are there so many notices?  The reason is that the laws assume that 100% data privacy can reasonably be achieved.  They further assume that any shortcoming (or suspected shortcoming) of data privacy should be an unusual event within well-managed enterprises.  The assumptions are wrong.  
The expectations of the public, and especially the expectations of policy makers, are out of touch with the reality of modern data management.  These outsized expectations contribute to a growing risk of monetary liability on the part of data holders.

So what are data holders to do?  Obviously they need to invest in data security, training and investigation – and they have been.  But banks, schools, utilities, clinics, hospitals, merchants and government agencies can throw massive investments at this problem and never meet present expectations.