This month, Snapchat, an application that allows users to send self-destructing photographs and videos (“snaps”) that expire within 10 seconds of viewing, became the third most popular free photo and video application in the United States, in an enviable position right behind YouTube and Instagram.
Snapchat, whose application icon is a ghost, was originally created as a way to prevent embarrassing photos from later coming back to haunt the subject. The demand for such a tool was so great that Facebook recently released its own rival application, Poke, which allows users to send self-destructing pokes, text messages, photos, and videos.
Self-destructing communication could potentially have vast legal implications; a method of communicating that left no trace of evidence could redefine litigation tactics and e-discovery practices. However, it appears very likely that, at least for now, “snaps”, like all other “new” modes of electronic messaging to come before it—email, texts, instant messages, social network posts and pictures, and tweets—will be treated as discoverable evidence.
Under Federal Rules of Civil Procedure 34(a), electronically stored information (“ESI”) is discoverable if it is “stored in any medium from which it can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” The Advisory Committee Notes further explain that the rule is “intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.”
As such, parties seeking to obtain evidence from an adversary or non-party that the user has already deleted from a social network can sometimes procure that information from the social networking site itself. User material is generally available on a social network’s server for a period of time after it is technically “deleted” by the individual, and when circumstances dictate it, courts will order the production of the desired deleted material.
Additionally, there are already documented methods by which “snaps” can be retrieved from a recipient’s cell phone, as well as general forensic e-discovery tools currently in use that preserve and extract deleted texts, photos and emails from cell phones. If a process exists to recover the “snaps” from cell phones, it will likely be used during discovery.
It remains to be seen if a technology will exist one day that allows for truly disappearing messaging. In the meantime, the well-founded advice not to put anything in an unprivileged email—or on a social network or in a “snap” for that matter— that you wouldn’t want disclosed to an adversary still endures.