The Federal Trade Commission (FTC) and the Department of Justice (DOJ) have mandated that companies under investigation must furnish their instant messages or risk facing criminal obstruction charges. Amazon and Google drew criticism last year for erasing chat histories. The FTC notes that messages from platforms such as Signal, Slack, and Gchat are considered discoverable documents, but companies haven’t consistently stored them properly. Users relying on Slack or Signal for work communication are advised against deleting chat history.
Recently, the FTC and DOJ jointly declared that companies subject to investigations must provide these messages, and non-compliance may lead to civil penalties and criminal charges. Manish Kumar, Deputy Assistant Attorney General at the DOJ’s antitrust division, highlighted that these legal updates aim to prevent claims of ignorance when businesses use ephemeral messages. Federal antitrust enforcers are modifying document requests to ensure the preservation of messages sent through collaboration tools like Slack, Signal, Google Chat, and Microsoft Teams.
Despite the rising popularity of these messaging apps for work communication, the challenge lies in the potential disappearance of written records due to their transient nature. The FTC acknowledged that documents generated through these technologies have always been subject to requests from the FTC and DOJ. However, companies haven’t consistently stored such documents properly during government investigations and litigation.
This announcement follows two high-profile cases involving major tech companies accused of intentionally deleting internal communications relevant to future litigation. In a significant antitrust lawsuit against Google, the Justice Department claimed that the company encouraged employees to use off-the-record chats like Google Hangouts or instant messages with a 24-hour auto-delete feature.
The lawsuit claimed this activity occurred for at least four years, even during a time when the company could have anticipated litigation. Google’s “Communicate with Care” program included training sessions for employees on the benefits of using history-off chats, according to the DOJ. Google also faced criticism from U.S. District Judge James Donato in a separate antitrust lawsuit related to its app store. He rebuked Alphabet Chief Legal Officer Kent Walker publicly for the company’s recordkeeping mistakes.
Amazon, too, is accused of hiding communications from the FTC and 17 states involved in a lawsuit over its alleged retail monopoly. The lawsuit claims that Amazon executives deleted internal communications using the “disappearing message” feature of the Signal messaging app and destroyed over two years’ worth of such communications, despite being instructed not to do so by the plaintiffs. Both Google and Amazon deny these allegations. Google stated in a court filing that it took appropriate measures to preserve history-off chats, while Amazon disclosed its employees’ Signal usage voluntarily to the FTC and cooperated by providing conversations from their phones for inspection, even when unrelated to the FTC’s investigation.
The U.S. Securities and Exchange Commission has also started imposing penalties on companies that fail to preserve employee chat histories adequately. The agency has fined over 40 firms a total of $2.7 billion for conducting business off-channel, including through WhatsApp
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