It was only a matter of time before the self-destructing messages of “Mission: Impossible” fantasy became a reality. Now that the technology has arrived—sans the signature smoke—it has created new legal and public relations issues for HR leaders to consider.
Spearheaded by a new application called Confide, self-destructing mobile messages are designed for “off the record” conversations, or situations where two parties want to have candid and private discussions without fear of text messages being permanently stored or inadvertently shared.
It’s a technology Frank Underwood’s character in “House of Cards” would love.
Confide, available in the iTunes store but not yet available on Google Play, was launched after the company’s co-founder e-mailed a colleague asking for a reference for someone who used to work for the colleague. The e-mail was answered by a promise to call back, but since both were busy executives, it took them six days to connect by phone. When they finally did catch up, both thought there had to be a more efficient way to have such off-the-record conversations. The Confide app was born soon after.
The founders believed that because confidential conversations happen all the time in the offline world—through phone calls, meetings over coffee or conference room chats—they should be made possible in the digital world as well.
Self-destructing messages might be used as a substitute for sending e-mails or texts marked “confidential—don’t forward” or in situations where two parties would prefer a phone call over a written—and thus archived—conversation. Topics might include job referrals, sensitive HR issues, discussion of legal matters or ongoing deal negotiations. Although confidential conversations happen offline in legal scenarios like any other (between attorneys regarding prosecuting strategies, etc.), sources suspect those chats could move online to apps like Confide, since there's an assurance the text messages won't fall into the wrong hands.
Legal and Public Relations Issues
Before sanctioning use of self-destructing messaging in the workplace, organizations should first evaluate their potential legal and public relations risks, said Renee Jackson, who heads the social media and technology practice of the Nixon Peabody law firm in San Francisco.
Although no laws in the United States currently prohibit use of the technology, Jackson said there nonetheless are legal concerns to be aware of as use of self-destructing texting grows. The primary one is that evidence of communication still exists despite eliminated messages. For example, in a case of legal action by a job applicant who wasn’t hired, self-destructing messages would be treated like an in-person conversation. “There’s no written evidence of the conversation, but there is someone’s memory,” Jackson said. “The people involved in the text messaging could be sitting at a deposition or in front of a judge and jury and will have to testify under oath about their memory of the communication.”
Brian Jones, a partner with the Bose, McKinney & Evans Law firm in Indianapolis, added that there are cases where having electronic records are beneficial to organizations. “If you communicate with someone, and a situation goes awry, it can certainly be helpful in many cases to have a record of what was said,” Jones said.
Jackson said if an application provider like Confide keeps transactional data of a message—not the content but date of communication, e-mail addresses of those communicating and the like—it could be subject to subpoena.
Laws do exist that require certain communications or documents to be retained. The Age Discrimination in Employment Act requires that employers keep records pertaining to the failure or refusal to hire individuals for one year from the date of the personnel action, Jackson said. Also, the Americans with Disabilities Act (ADA) and Title VII also require employers to preserve certain personnel records for specified periods.
“These statutes weren’t written with today’s technologies in mind, so it makes compliance with them a challenge,” Jackson said, adding that arguments could be made that self-destructing messages are covered records and communications under these regulations.
Jackson also said self-destructing messaging carries potential for nefarious uses, such as sexual harassment, insider trading or leaking confidential or trade secret information. And should use of the technology become known outside the company, it also can raise questions as to why employees would need to use secretive messaging platforms, creating potential public relations issues, she said.
Dave Zielinski is a freelance business journalist in Minneapolis.
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