News & Events

ESI and Transitory Data

Snapchat, a popular photo messaging application, has seen a steady rise in use since it debuted in 2011, with approximately 1 in 5 U.S. iPhone users employing the app in August 2013. Snapchat’s most attractive feature is the transitory nature of its content: photos are not saved locally and disappear a few seconds after the recipient opens them. This perceived impermanence, of course, can lead to users posting unwise or even illegal content, which may arise in all kinds of litigation. In the commercial litigation context, this type of data could be relevant in, for example, insurance coverage, business torts, intellectual property, or professional liability cases. Snapchat is also rumored to be a popular tool for insider trading. As a consequence, preservation of this content has become a hot issue in electronically stored information (“ESI”) in civil litigation.

Snapchat made headlines last month when Micah Schaffer, the company’s Trust and Safety officer, revealed on the site’s blog that Snapchat keeps unopened “Snaps” stored on Google’s App Engine, a cloud computing service, until they are deleted. Schaffer further revealed that the company had produced unopened Snaps to law enforcement pursuant to “about a dozen” search warrants. Snapchat also maintains a Law Enforcement Guide (available here), which details how the company complies with subpoenas from government agencies. The guide reveals that Snapchat can preserve “all available account information” for up to 180 days and that it can produce a log reflecting the metadata in a user’s last 200 sent or received Snaps.

For now, Snapchat data is discoverable only by government entities, and opened Snaps are deleted automatically within one to ten seconds. That makes questions of preservation and spoliation extremely difficult. However, the creator or sender of the Snap can retain a copy of the image on his or her phone, and the recipient may take a screenshot of the image while it exists. In addition, a new app, called SnapHack Pro, promises a means for recipients to save Snaps to their phone easily and without the sender’s knowledge.

Businesses should carefully consider whether Snapchat could be used in illegal or unethical ways in their particular industry, such as the insider trading example above. Inevitably, this information will be sought in both criminal and civil litigation in the future. For now, Snapchat remains a mostly untested source of ESI, but the data may not be as ephemeral as its users believe.

Valerie Diden Moore