In the Mission Impossible series Tom Cruise receives self-destructing assignments before embarking on a theatrical, mostly death defying, stunt filled mission. Interestingly enough, minus the explosive part, those messages are now no longer just for the movies. There is an app, Confide, that provides the same security without all the cleanup. Confide provides users “[w]ith encrypted, self-destructing, and screenshot-proof messages, . . . [that offer the user] the comfort of knowing that . . . [their] private communication will now truly stay that way.” Confide insures that its messages are encrypted, ephemeral, and screenshot proof because it “uses industry-standard end-to-end encryption[,] . . . [ and uses] patent-pending ScreenShield technology.”
At first glance, this new technology sounds amazing. A problem, or at least questions, arise when people in power start using this technology. A good example of this is Eric Greitens, governor of Missouri who is currently being sued for his use of this app. Specifically the lawsuit alleges that the Governor “dodg[ed] public records laws” with the app. The problem, given the secrecy the app provides, is that people are skeptical as to what is being discussed on the app. The governor could have discussed only personal matters as he claimed, but, he could have also used it for business dealings. Only furthering suspicion is the Governor’s refusal to even disclose the date that the app was installed, stating that “allowing the public to learn what date the app had been installed would compromise the safety and security of the governor and his employees.”
While the governors case is concerning enough, even more concerning is what this could do to future evidence collection procedures. Currently, most written forms of communication such as texts, e-mails, and website posts can be recovered in an investigation even if deleted. While it is claimed that “the use of Confide is no different than government employees discussing official business in conversations, either in person or by phone,” that is not truly the case. Now text messages can house a variety of things such as documents, website links, money transfers, and they can “order food . . . [or] buy movie tickets . . . without leaving the Messages app.” While Confide may not have all of the above said functions yet, it is probably a matter of time until it incorporates these functions. Being unable to have a record of receiving documents or payments could cause a serious problem for litigators attempting to collect evidence according to current evidentiary standards.
The current evidentiary system is not prepared to incorporate the use of Confide should it ever become widespread.
Therefore, Confide is potentially a massive problem for lawyers because there is no evidence to recover and whatever trace there could have been is long gone.
This app could also pose problems with regard to litigation holds that are issued. If a person, such as the Governor, hypothetically, would be subject to a litigation hold, it could cause suspicions to plague the office on whether the app would be used to circumnavigate the hold.
The development of this new app is extremely problematic in that it obfuscates a portion of an individual’s actions and thereby creates doubt as to the legitimacy of those actions. The question instantly becomes “Why did they use it?” followed potentially by “What are they trying to hide?” As a complete ban on the use of this app is unlikely, perhaps investigators and litigators might want to consider banning its use during specific periods such as investigations or litigation holds. Another option to deal with the lack of clarity would be to ban people with access to sensitive information from using the app. Time will tell how this app is to be treated going forward with respect to its use or abuse.