Bloomberg Law
March 3, 2023, 4:18 PM

DOJ Getting Tougher with Companies on Messaging App Evidence

Ben Penn
Ben Penn

The Justice Department will dig into the ability of companies to produce employee communications on encrypted messaging apps like Signal and WhatsApp as part of criminal probes.

“During the investigation if a company has not produced communications from those third-party messaging applications, our prosecutors will not accept that representation purely at face value,” department Criminal Division chief Kenneth Polite said Friday in announcing a new policy.

Prosecutors will interrogate the ability of companies to access employee chats, including whether they’re stored on corporate devices or servers, Polite said at an American Bar Association conference in Miami. They will also consider how companies convey their messaging policies to employees and whether those policies are actually enforced.

“A company’s answers or the lack of answers may very well affect the offer it receives to resolve criminal liability,” Polite said.

Prosecutors have struggled to obtain evidence relating to business-related communications buried on third party apps or personal devices, particularly while investigating individuals.

Companies also have scrambled to develop policies on how to access information from business-related chats.

Last year, more than a dozen Wall Street firms reached settlements with the Securities and Exchange Commission—over unauathorized messaging apps—totaling $1.1 billion.

The Justice Department’s new policy, which will be written into the Criminal Division’s guidelines on how prosecutors evaluate corporate compliance programs, was directed by Deputy Attorney General Lisa Monaco in September.

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