Legal requirements and professional guidelines about retaining certain kinds of records – such as text messages, calls, and other electronic communications with clients and employees – differ by region and country. Such records must be kept not only for compliance reasons but also to assist the organization in case of litigation. To avoid non-compliance, however, some companies have concluded that they should archive forever – anything and everything – just to err on the safe side. But this strategy can significantly waste resources.

The following statutory obligations apply to companies and organizations in relation to record mobile messages and retain of business text messages and calls decisions, which should help organizations decide when it is safe to delete such data in their storage.

Financial Organizations and Publicly-Held Companies

1. SEC – The SEC Rule 17a-3 and 17a-4 requires broker-dealers to implement electronic recordkeeping and may use any digital storage platform that strictly prohibits overwriting or erasure of their records (Write Once Read Many) for a required retention period of not less than six years.

2. FINRA – The FINRA Regulatory Notice 17-18 clarified that any financial institutions under its authority that “intends to communicate, or permit its associated persons to communicate, with regard to its business through a text messaging app or chat service must first ensure that it can retain records of those communications” for a duration of not less than 3 years on non-rewriteable and non-erasable storage, AKA Write Once, Read Many (WORM) Recordkeeping Formats.

3. Dodd-Frank Act – The recordkeeping requirements of Dodd-Frank Act obliges Swap Dealers (SD) and Major Swap Participants (MSP) to retain trade-related records to a life of a swap, plus five years. The exception to this is oral communication, where retention is one year.For non-transactional records, retention is set to five years from the moment record was created.

4. Sarbanes-Oxley Act – The Sarbanes-Oxley Act of 2002 (SOX) requires publicly-held companies to maintain a complete and accurate business record for internal use and external reporting for up to seven years. This includes archived copies of electronic documents and communications such as text messages.

5. MiFID II – The recordkeeping requirements of the Markets in Financial Instruments Directive (MiFID II) requires financial firms, trading venues, and their associates to record mobile text messages and electronic communications relating to, at least, transactions concluded when dealing on own account and the provision of client order services that relate to the reception, transmission, and execution of client orders for a period of five years.

6. FCA – The Financial Conduct Authority (FCA) stipulates in its recordkeeping requirements that financial firms must “..archive telephone conversations and all other types of electronic communications that relate to the activities in financial instruments” in a durable medium for at least five years.

7. IIROC – The archiving requirements of Investment Industry Regulatory Organization of Canada (IIROC) requires firms to record mobile text messagess relating to their business activities, financial affairs, client transactions and communication and retain them for five years from the date of creation. Additionally, all sales literature and related documents must be retained for two years from the date of creation.

Governmental Agencies

1. Sunshine Laws – A variety of regulations in all 50 states require capturing and retaining mobile communications. Check out our previous post: Sunshine Laws in the United States to learn more about the record retention periods for various states.

2. Freedom of Information Act (FOIA)– The FOIA, along with other related statutes, states that text messages are considered public records pertaining to the work of the agency – obligating agencies to save these records. A detailed record retention schedule can be seen here.

3. NARA (National Archives and Records Administration) – The recordkeeping guidelines of NARA requires all government agencies retain public records for as long as they are needed so agencies can locate and deliver them promptly, knowing they are trustworthy and complete.

All in all, failure to retain records of SMS messages and calls that are both necessary and proportionate to the record retention periods specified on the applicable regulation/s could lead to significant civil and criminal liabilities. Therefore, it is essential for all organizations to have record retention policy and an appointed authority that would make sure that those records are not archived for longer than is necessary and that they are securely disposed of.

Record Mobile Messages

TeleMessage’s Mobile Archiver can help organizations across the globe to efficiently manage data and content including enterprise SMS, emails, and web and social media content. Our compliant archiving solution is equipped with versioning, and robust governance capabilities that ensure content across all digital channels meet global regulatory requirements.

Contact us today to learn more about mobile archiving solutions.