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Friday, December 23, 2016

Spoliation in the Age of Snapchat

According to Douglas Adams, a set of three rules "describe our reactions to technologies: 1. Anything that is in the world when you're born is normal and ordinary and is just a natural part of the way the world works. 2. Anything that's invented between when you're fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. 3. Anything invented after you're thirty-five is against the natural order of things." Rule 1 explains why I collect vinyl. Rule 2 describes my career trajectory. But I started to move into Rule 3 with Snapchat.

Both anecdotal evidence from my students and industry stats show that Snapchat is here to stay. I'll admit that the first time I tried to use Snapchat, my Discover page of news stories included Seventeen Prom and something about the Kardashians. This made me feel old and silly, and I waited another month or so before I actually began using it. And now I get it - Snapchat can be fun. It steers us away from polished highlights and instead is meant to capture little moments throughout the day from the account-holder's perspective (Snap Inc.'s plan to create camera glasses will further this trend). But the biggest thing is the sense of freedom it creates with the promise of disappearing content. Snapchat stands for less permanency and more spontaneity.

As Snapchat stakes its claims as a social media powerhouse, new legal issues arise in the litigation context.

What are the duties to preserve data on ephemeral apps like Snapchat? Some ethics opinions make clear that lawyers must advise clients about their own social media usage, which may include instructions to preserve social media content. Certainly intentionally deleting Facebook content when there is a duty to preserve can lead to sanctions. But is there an issue with using self-destruct apps instead? Do the broader safe harbors in the 2015 amendments to the Federal Rules of Civil Procedure help address these potential issues? 

These are some of the questions I'm exploring in my work-in-progress, Social Media Spoliation. More broadly, I am curious how the law should adapt to the fact that we, as individuals, have become stewards of large amounts of data. We create vast digital archives about ourselves through our online activity. While many social media platforms store our personal data, they also may encourage modification or deletion of content through normal usage. The impact of ephemeral apps, like Snapchat, signals a new realm of potential discovery and spoliation issues - not to mention an epidemic of ridiculous selfies.

Posted by Agnieszka McPeak on December 23, 2016 at 09:36 AM in Civil Procedure, Information and Technology, Web/Tech | Permalink

Comments

There are a number of facets to the Snapchat dynamic. (1) Regarding spoilation, Snapchat's auto-delete is simply a return to historical norms. For example, a figure as prominent as Donald Trump left behind only a few yearbook photos from his teenage years at the New York Military Academy (and was voted the class Ladies Man...truer than they knew, eh?). The prospect of having years-old social data used against you has a chilling effect that is only now settling into popular culture. Your skepticism for social media is, at least partly, not because you are old and inflexible, it is because you are experienced and wise about the long term consequences. (2) On a technical level, it is almost impossible to make auto-delete reliable and secure. A hacked app or modified hardware can retain data undetectably. Right now you need hacker skilz to do this (the Android development environment on a PC for example) but as Snapchat's popularity rises, the desire to retain data (e.g. photo-sexts) will be irresistible and hacked apps inevitable. The Snapchat mojo will be serously impaired when it becomes easy to cheat the auto-delete. (3) Voip phone providers encountered a similar legal situation when courts ruled that metadata more than 18 months old was not private enough to require search warrants. They responded by not retaining such data. Voip is so cheap now, that data doesn't serve any business purpose other than a convenience for the customer, but most customers prefer the privacy and those that don't can download and store the data themselves. I remember similar discussions in the early 00's about webserver logs; it was a nearly universal consensus among technical people that periodic log-purging was entirely normal and is built into the infrastructure with things like the logrotate command. (4) Part of Snapchat's rise is due to the declining quality of its competitors. Twitter is obnoxious, Facebook increasingly spammy, Friendster died, and MySpace is now a niche service for musicians. The effect is much like a hot new nightlife venue after its initial flash of popularity: the social magic disappears and the trend-setting crowd goes elsewhere. Until the new venue loses its magic, etc.

Posted by: M. Rad. | Dec 24, 2016 10:47:04 AM

I think at some point we will accept some forms of texting as the equivalent of real-time talking and will no longer treat them the same as other digital records, even though data storage is possible. The comparison to VoIP is accurate I think. We do have to remember the lessons from the Snappening and overall lack of true privacy with ephemeral apps. Snapchat solves some of the long-term implications of social data trails, but risks still exist. And yes, as soon as more of us outside the 18-24 range start hanging out in Snapchat (making it far less fun), some new social network will come along and take its place. How quickly we forget Friendster......

Posted by: Agnieszka McPeak | Dec 24, 2016 2:26:49 PM

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