In early 2013, Snapchat, an app that allows users to send self-destructing photos, became the second-most popular iPhone app with approximately 50 million snaps a day. While Snapchat is aimed at a younger non-business audience (think teens sending “selfies” to their friends), we had recently been talking about the potential legal implications arising from employee use of Snapchat. In the midst of that discussion, along comes Confide. Confide is a free text-based iOS app that permits users to send text/email messages to others which disappear as soon as they are read by the receiving party (the app requires iOS 7.0 or later and is optimized for the iPhone 5).

Confide targets its service to professionals who want to discuss personal, business or legal issues without the fear of an evidentiary trail. In the “Frequently Asked Questions” section of its website, Confide provided its “good use cases for Confide” as follows:

  1. Anytime you send an email or text saying “Confidential — don’t forward”
  2. Anytime you respond to an email or text with “I’ll call you”
  3. Anytime you say “Can you send me your personal email; I’d prefer this conversation not be on work servers”

The FAQ’s go on to state that good uses could include discussions about “[j]ob referrals, HR issues, deal discussions, and even some good-natured office gossip.”

I admit the thought of business messages being sent purposefully so that employees (including management) can have “off-the-record” discussions – that immediately disappear – causes some level of anxiety for the employment lawyer side of me. But, let’s look at how this app works before I provide any thoughts on its business use.

On a basic level, Confide’s interface operates like other message sending apps (it contains a recipient, subject line and a message), except that when users open a message, the text is covered by a colored box that only disappears when the user runs a finger over the words. The box reappears after the user passes on to new words. According to Confide’s website, this “wanding” ability is supposed to provide screen shot protection. The app also sends a notification to the sender if the recipient tries to screen shot the message. Confide also boasts “end-to-end” encryption, which means the key to deciphering the incoming message lies only on the recipient’s mobile device, not Confides’ servers. Confide claims that it does not have the ability to read, or even retrieve, the user messages (this also means that no one else could later retrieve the message). Confide does, however, require complete access to the user’s Address Book on the device used to access Confide. Confide stores the Address Book data in order to provide the service. (See Confide’s Privacy Policy). By using the app, users agree to Confide’s access to that Address Book.

So – in light of all of those features, what do businesses need to be thinking about in deciding whether to embrace or reject this new technology?

Potential Benefits

  • Confide grants users the ability to engage in private communications that won’t be stored anywhere. This could be used for communications that really don’t need to be permanently recorded, such as where to meet for lunch, whether you are attending a particular meeting, or the like.
  • The impermanence might be also be good if employees are simply venting to each other about the workplace – providing an outlet for employees to let off harmless steam without those remarks coming back to haunt them, or their employer.

Potential Cons

  • Confide grants users the ability to engage in private communications that won’t be stored anywhere. This feature and the app’s impermanence might raise problems for businesses required by law to retain certain types of records or preserve documents or data for litigation purposes, or which are are prohibited from engaging in certain types of communications.
  • From an employment standpoint, these ultra-private communications could lead to inappropriate discussions between employees – leaving the employer left with trying to work out a “he said, she said” situation without any concrete evidence.
  • Confide requires the user to grant complete access to their Address Book. This should raise concerns for companies seeking to protect certain contact information – such as client information. Clients too might not appreciate their contact information being shared freely with Confide.
  • Employees may also make improper use of the app – whether to share confidential information, to make plans to go work for a competitor to name just a few, to share confidential information with that competitor, to discuss important internal matters that really ought to be recorded in some fashion, and the list goes on.

In light of the pros and cons above, businesses will have to decide whether they want to encourage “off-the-record” discussions between employees and permit the use of apps like Confide. At the very least, the advent of apps like Confide should serve as a reminder for business to take affirmative steps to keep current with all new technologies to protect business interests, trade secrets, and regulatory and legal obligations. Our next post will address some affirmative actions you can take to stay on top of new technologies.