Snapchat, Steubenville, and eDiscovery

I was recently cajoled into signing up for snapchat. For those not up to date on teenage app fads, snapchat allows the user to send photos to friends that automatically delete after a specified period of time (default of 3 seconds, maximum of 10 seconds). From the user’s vantage point, the pictures disappear from both the sender’s and receiver’s phones as well as the snapchat server. Among other uses, snapchat quickly became branded as a quick, easy, and safe(r) way for teens to sext. It would allow “teens... to communicate with their friends in a manner that won’t haunt them forever.” (Disclaimer to future employers on this public blog: I have never used--nor do I have any intention to use--snapchat as a sexting vehicle).

In non-Ian related social media news, a verdict was handed down this week in the Steubenville rape case. Two teenagers were convicted the rape of a teenage girl. During the assault, the boys texted, tweeted, and posted youtube videos about the rape. This web of social media evidence of the rape gave “investigators... something like a real-time accounting of the rape.” One thing that stuck out to me was the Judge in the case said it should be a lesson to teens in “how you record things on social media that are so prevalent today.” This led me to the question of what would have happened had the teenagers used snapchat instead? Would the evidence have still been there?

Conventional wisdom is that the pictures, once viewed and automatically terminated, are just that: terminated and irretrievable. But there may still be a digital trail. Snapchat’s privacy policy warns that “Although we attempt to delete image data... we cannot guarantee that the message contents will be deleted in every case.” (click privacy policy at the bottom). The only example it gives, however, is that the receiver could save the photo by taking a screenshot or using another camera. It does not address the digital remnants on its servers.

What would happen if lawyers would make a discovery request for all snapchat messages sent related to a certain case? Ediscoveryresourcedatabase.com addresses how lawyers can go about discovery in the age of snapchat. The first challenge for lawyers to show that the messages existed in the first place. Luckily, snapchat says it “[logs] information about messages, including time, date,and who sent and received the message,” but not their content. 

From best I can tell, no one has successfully retrieved messages that have been deleted for discovery purposes. But, if the messages existed, snapchat opens its users to a spoliation claim (significant alteration or modification of evidence in a reasonably foreseeable litigation.). Because of “the nature of [snapchat] and software settings,” if the sender knew that the pictures were“relevant to an existing or foreseeable legal claim at the time the communication was generated and sent”, a spoliation claim could succeed. However, FRCP 37(e) in the civil context creates a safe harbor for “failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” A cursory Westlaw search reveals that whether snapchat falls within the safe harbor. On the one hand, snapchat deletes everything. On the other, if an someone uses snapchat during an assault because it deletes it, this may  not be “good-faith operation.” We don't know how courts will rule, but we can be sure that "combining cameras; young people; and secret, self-destructing messages could only mean trouble," and that this will soon be litigated.