Ephemeral Technology and the Potential to Avoid Legal Consequences

October 7, 2015

Generation Y knows Mark Cuban, whether by his courtside antics during Dallas Mavericks games (he owns the team) or by his appearances on ABC’s Shark Tank. However, millennials might be surprised to learn that Mark Cuban’s latest venture is to help people reduce their digital footprint.  In 2013, Cuban prevailed in an insider trading action brought against him by the SEC, ending a five-year court battle. For years, Cuban watched government investigators pore through his business and personal information, including prying through both texts and emails.
As a result, he has recently invested in and is heavily promoting a relatively new mobile application called Cyber Dust.  Cyber Dust’s website boasts that the app is “the most personal communication platform ever.” It allows users to privately communicate by sending and receiving text messages, photos, links, and more with their contacts, much like other platforms.  The draw of Cyber Dust is that the messages disappear within seconds of being read, purportedly forever.  The website assures that messages are, “Gone Forever: Messages never hit a hard drive, so when they disappear, they disappear for good.”
These types of programs are more formally known as “ephemeral technology.”  The ephemeral industry’s popularity is rapidly growing, mostly thanks to the overwhelming success of Snapchat, an application (“app”) that allows users to send pictures, videos, and chat messages to other users, who can view the content for one to ten seconds before it disappears.  Ephemeral mobile applications like Snapchat are capable of sending messages, pictures, videos, and other communications that self-destruct.  This feature is attractive to users who desire greater privacy in their electronic communication.  In an interview earlier this year, Cuban explained why undiscoverable messages can be useful by saying, “when you send a text or email you lose ownership of that message, but you don’t lose responsibility.”
Text messages, messages sent through social media, and photographs and posts on social media can be “smoking guns” in domestic cases, as they are easily accessible and can be authenticated.  The Federal Rules of Evidence says an item of evidence can be authenticated or identified by a witness claiming he or she wrote the post or by Rule 901(b)(4), which allows authentication through “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”  This Rule allows social media posts, texts messages, emails, and other electronically stored information to be used as evidence in legal proceedings.
But what happens if, in the future, texts, emails, and messages simply disappear?  Such is the goal of ephemeral apps like Snapchat and specifically Cyber Dust.  In an interview with Business Insider, Mark Cuban spoke about his latest project, Cyber Dust, saying, “Whether it’s business or personal, it’s really become an effective communication platform.” Cuban boasts about the fact that Cyber Dust is completely untraceable.  The “dusts,” messages sent on the app, are never written to permanent storage; therefore, they exist only in memory.  Dusts are also heavily encrypted, and are deleted from existence 100 or less seconds after being read or 24 hours after being sent if they are never opened. Cuban seems to believe that Cyber Dust is an absolute solution for private and secure communication and even mentions how the app can help users avoid legal consequences.  He said, “Something goes wrong, you know you’re going to have to do a deposition, you know you’re going to have to produce everything; but with us, it’s discovery free, there’s nothing to discover.”
The concept sounds extraordinary and extremely convenient for many users, from the college student who wants to send information about an exclusive party to only his friends to co-workers wanting to talk privately about their boss or peers.

But given the importance of social media and electronic communication like text messages in court cases, especially domestic hearings, should apps like Snapchat and Cyber Dust and other programs providing “disappearing messages” and other types of ephemeral technology be required to have a way to preserve their information for important evidentiary purposes?