The memo noted that corporations with robust compliance should have these types of device and messaging policies, provide training to employees on them, and enforce the policies when violations are identified. The DOJ’s most recent comments follow a memorandum from September 2022 recommending that companies institute compensation clawback measures to ensure employees adhere to corporate compliance policies, including policies governing employee use of personal devices and third-party messaging apps such as Signal, Telegram, WhatsApp, etc. Officials made clear that “ company’s answers – or lack of answers – may very well affect the offer it receives to resolve criminal liability.” And they warned in no uncertain terms that if a company does not turn over these types of communications, “ prosecutors will not accept that at face value.” Where a company fails to produce such communications, prosecutors will further scrutinize the company’s ability to access those communications and how they are stored, among other things. ![]() ![]() Officials noted that when conducting an investigation, DOJ prosecutors will consider a company’s use of ephemeral and encrypted applications, whether the company preserved those communications, and if those messages are accessible for the investigation, as well as company policies governing such apps. At the March 2023 American Bar Association National Institute on White Collar Crime, senior Department of Justice officials offered their most expansive guidance yet about the dangers of using ephemeral messaging for company communications.
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