Maintaining an archiving solution for your organization’s email and social-media accounts isn’t just about having convenient access to emails and other digital communication. In today’s business world so dominated by digital data, your organization has a responsibility to retain its email and social-media communication. In fact, it may well be mandated to do so by a series of constantly evolving archiving regulations set forth at the state and federal levels, not to mention from one industry to the next.
Message-Archiving Regulations on the Rise
The number of message-archiving regulations (an estimated 5,000 in the U.S. alone) has been growing steadily over the years. These regulations, coupled with the constant threats of litigation your organization faces daily, mean vigilance is critical. This situation, however, places a heavy compliance burden on hundreds of thousands of public/private firms and organizations, as well as governmental agencies, which depend on email and use social media to communicate internally and with the world abroad.
But before getting into the many rules and regulations, it’s important to recognize the difference between rules that pertain to the public and regulations that pertain to the government.
What’s the Difference Between Rules and Regulations?
When it comes to the government, the Freedom of Information Act (FOIA) requires that all governmental agencies retain emails for the public record for a certain time period. For the public sector, however, the rules an organization must follow are largely dictated by the Federal Rules of Civil Procedure—essentially, ground rules determined by federal civil court cases. Up until 2006, the Federal Rules of Civil Procedure were somewhat ambiguous on whether electronic documents (email) should be retained. Some judges said they should, whereas others said they should not.
Over time, the federal government has made multiple changes to its rules and regulations and has expanded the definition of “document” to include all electronically stored information (i.e., emails, directives, files, communication and requests), which means all electronically stored information must be retained indefinitely. To be clear, no law on the books in the public sector says a company or organization must keep email communication. Rather, the rules say you must treat this communication reasonably and responsibly in case they should ever be requested in a court of law. Ultimately, it’s up to you on how you satisfy this rule.
The law, however, requires you to know where that data is stored, to be able to search through it and to be able to retrieve it on demand. The law is also careful to note that simply storing the data isn’t enough. You can’t use a random system, let your emails pile into it and hope that you never actually have a reason to search through it. Instead, the law notes that you have to know how the system works, be able to use it efficiently and be able to produce the requested emails quickly. “I don’t know how to get to it” or “It’s not pulling up in a search” is no longer an acceptable excuse.
The Same Goes for Social Media
Given the vast amount of information posted on social media by the day, hour and minute, the Internet is truly a rich resource of endless, up-to-date information and can provide great insight into an individual’s or organization’s intentions. This situation is changing the e-discovery landscape.
Cases involving social media have continued to increase at a rapid pace; they include everything from workplace harassment to copyright infringement. Digital evidence relevant to all these cases can come in a variety of forms, such as tweets, social-media chat logs, Instagram images, web pages, blog posts and LinkedIn connections.
Because digital information is easy to create, fake or alter, how do investigators collect and preserve social-media evidence? How do they ensure the chain of custody is unimpeachable? How can they authenticate the evidence so that courts will accept it without question?
According to the Rules of Evidence FRE Rule 90, Electronically Stored Information (ESI) such as social-media content must be authenticated to verify it is what it claims to be. As a result, retaining the original source for this communication is imperative. Federal Rules of Civil Procedure Rules 26 and 34 require organizations to collect and be able to produce all necessary information relevant to litigation. Rule 37 states that sanctions may be placed on parties who do not respond to discovery requests, or who fail to cooperate in the process.
Protect Your Organization Using a Top-Down Approach
Although the federal government’s laws on retaining electronically stored information affect every organization, states also have their own variations of these laws for every industry, from medicine to finance. If your organization has entered 2017 unprepared and without a solution to maintain both email and social-media communication, it’s not too late to get the protection you need to ensure compliance.
The following is an effective strategy to ensure your organization, whether private enterprise or governmental agency, is in line with the various email and social-media archiving rules and regulations on the books today. Rather than even attempt compliance with every single rule and regulation on the books, your organization is likely best served by following a “top-down approach” that ensures compliance with top federal rules and regulations. In general, if you are in line with rules set forth by the Securities and Exchange Commission, chances are you’re in good shape. But after verifying that you’ve satisfied all federal retention requirements, it’s a good idea to consult with legal counsel about specific laws within your state and local governments as they apply to your industry and position before deleting emails.
About the Author
Azam Qureshi is cofounder, president and CTO of Intradyn, a leader in e-discovery and archiving markets. Intradyn produces email and social-media archiving products and solutions for small and midsize businesses, organizations and government agencies.