5 ms·

If they switched to using phone calls to discuss sensitive information and didn't record them, would they still be violating the rules?

btian 9y ago
no. that's why most corporate lawyers prefer you call them instead of email
- deleted 9y ago
  [deleted]
- ryandrake 9y ago
  What is a phone call, if not "a conversation that self-destructs after it's done"? Not commenting on how the law (which was written before "apps" existed) treats it, but on the true nature of a phone call vs. a messaging app.
  - spayu61 9y ago
    I believe the difference is intent--a phone call self destructs by default. They are not meant to be recorded (we even have laws here that prohibit it without consent of both parts). Messaging apps have, traditionally, kept logs, in both ends and in the server.
    - ISL 9y ago
      Entirely agreed, though it is true that intentionally-private messaging apps have, traditionally, not kept logs. That's a tradition worth keeping!
  - DannyBee 9y ago
    There are many many records of phone calls. I can ask your phone provider for them. I can subpoena you and make you testify to their content, etc.
    - Spooky23 9y ago
      If your specific conduct is under investigation, sure. This stuff is more about opposing counsel searching for keywords and finding something that adds supposed context to whatever they are suing about. If you send an inappropriate picture of a woman and make some crude comment, that can be used to bolster a harassment claim or establish a pattern of boorish behavior. If you make crude comments on the phone, that isn’t going to as easily reappear 5 years later.
- wglb 9y ago
  No, that is why you see the legal disclaimer--either attorney work product or "privileged communication".
- DannyBee 9y ago
  If you are talking with a lawyer, it's different than talking with a non-lawyer
Zigurd 9y ago
In most cases no, but the difference is only due to the greater challenge of recording conversations "in the field." There are plenty of cases where phone calls must be recorded.
ggg9990 9y ago
The way this works is that the law (lawmakers, courts, police) take a dim view of loopholes, as it's a threat to their own power. So they sit down and decide whhether you were in compliance with the spirit of the law and write laws in a way to criminalize that to the extent possible. It's not code.
huac 9y ago
There are numerous legitimate reasons for wanting to speak out loud for a conversation. But, if they said "let's do a call so that we can avoid putting possibly incriminating material to disk" then that would violate the rules, and is analogous to what is being alleged here.
- yongjik 9y ago
  IANAL, but the rule must be more subtle than that, because I lost the count of times I saw "Everyone please stop responding to this email. If anybody has a question please call us." while I was at $(huge SV company). Or something like "This conference will not be recorded due to the sensitivity of the topic." (Not the exact wording, but the intent was clear. They even educated every employee on the importance of not writing down stuff that may be later quote-mined in a lawsuit.)
  - tw04 9y ago
    >(Not the exact wording, but the intent was clear. They even educated every employee on the importance of not writing down stuff that may be later quote-mined in a lawsuit.) There's a MASSIVE difference between not writing stuff down because you have no idea if your competitors may use it against you in a future lawsuit, and not writing stuff down because you know what you're discussing is illegal.
    - deleted 9y ago
      [deleted]
    - codedokode 9y ago
      > because you know what you're discussing is illegal. How can you know that if you are not a lawyer?
      - tw04 9y ago
        Outside of the fact that's a ridiculous question because I could cite COUNTLESS things the every day man knows is illegal - it's not the point. The point is if you aren't writing stuff down because you BELIEVE what you're discussing is illegal, and it violates your own retention policies - if you aren't outright breaking a law in your state, you're actively engaging in a massive ethics violation.
joering2 9y ago
It depends how important your phonecall is from National Security point of view. If its a matter of bribery or even kidnapping, nothing can be done, but if its about some proven terrorist plot, ATT can recover your calls (so do probably all other vendors; we just don't know the details, aka black boxes) https://en.wikipedia.org/wiki/Room_641A https://en.wikipedia.org/wiki/Room_641A
- icebraining 9y ago
  Which has absolutely nothing to do with whether Uber itself is required to record them.
  - joering2 9y ago
    for sure more than your comment had.
Spooky23 9y ago
IANAL, but have dealt with ediscovery. Generally speaking you have latitude to do what you normally do within a medium. If you routinely delete mail every quarter, that’s ok. If you routinely record phone calls that’s ok. But there is no requirement to talk or write. Once you reasonably suspect that you are in the scope of an investigation or litigation, you need to take steps to preserve relevant things. Guidance from counsel is a good idea. Discovery is a double edged sword. Moving deliberative activity to phone calls or meetings doesn’t mean there is no record of the encounter. To the contrary, one or more parties are probably taking notes that align with their perceptions. (And self interest!) It all depends on the situation.

btian 9y ago

no. that's why most corporate lawyers prefer you call them instead of email

deleted 9y ago
[deleted]
ryandrake 9y ago
What is a phone call, if not "a conversation that self-destructs after it's done"? Not commenting on how the law (which was written before "apps" existed) treats it, but on the true nature of a phone call vs. a messaging app.
- spayu61 9y ago
  I believe the difference is intent--a phone call self destructs by default. They are not meant to be recorded (we even have laws here that prohibit it without consent of both parts). Messaging apps have, traditionally, kept logs, in both ends and in the server.
  - ISL 9y ago
    Entirely agreed, though it is true that intentionally-private messaging apps have, traditionally, not kept logs. That's a tradition worth keeping!
- DannyBee 9y ago
  There are many many records of phone calls. I can ask your phone provider for them. I can subpoena you and make you testify to their content, etc.
  - Spooky23 9y ago
    If your specific conduct is under investigation, sure. This stuff is more about opposing counsel searching for keywords and finding something that adds supposed context to whatever they are suing about. If you send an inappropriate picture of a woman and make some crude comment, that can be used to bolster a harassment claim or establish a pattern of boorish behavior. If you make crude comments on the phone, that isn’t going to as easily reappear 5 years later.
wglb 9y ago
No, that is why you see the legal disclaimer--either attorney work product or "privileged communication".
DannyBee 9y ago
If you are talking with a lawyer, it's different than talking with a non-lawyer

Zigurd 9y ago

In most cases no, but the difference is only due to the greater challenge of recording conversations "in the field." There are plenty of cases where phone calls must be recorded.

ggg9990 9y ago

The way this works is that the law (lawmakers, courts, police) take a dim view of loopholes, as it's a threat to their own power. So they sit down and decide whhether you were in compliance with the spirit of the law and write laws in a way to criminalize that to the extent possible. It's not code.

huac 9y ago

There are numerous legitimate reasons for wanting to speak out loud for a conversation. But, if they said "let's do a call so that we can avoid putting possibly incriminating material to disk" then that would violate the rules, and is analogous to what is being alleged here.

yongjik 9y ago
IANAL, but the rule must be more subtle than that, because I lost the count of times I saw "Everyone please stop responding to this email. If anybody has a question please call us." while I was at $(huge SV company). Or something like "This conference will not be recorded due to the sensitivity of the topic." (Not the exact wording, but the intent was clear. They even educated every employee on the importance of not writing down stuff that may be later quote-mined in a lawsuit.)
- tw04 9y ago
  >(Not the exact wording, but the intent was clear. They even educated every employee on the importance of not writing down stuff that may be later quote-mined in a lawsuit.) There's a MASSIVE difference between not writing stuff down because you have no idea if your competitors may use it against you in a future lawsuit, and not writing stuff down because you know what you're discussing is illegal.
  - deleted 9y ago
    [deleted]
  - codedokode 9y ago
    > because you know what you're discussing is illegal. How can you know that if you are not a lawyer?
    - tw04 9y ago
      Outside of the fact that's a ridiculous question because I could cite COUNTLESS things the every day man knows is illegal - it's not the point. The point is if you aren't writing stuff down because you BELIEVE what you're discussing is illegal, and it violates your own retention policies - if you aren't outright breaking a law in your state, you're actively engaging in a massive ethics violation.

joering2 9y ago

It depends how important your phonecall is from National Security point of view. If its a matter of bribery or even kidnapping, nothing can be done, but if its about some proven terrorist plot, ATT can recover your calls (so do probably all other vendors; we just don't know the details, aka black boxes) https://en.wikipedia.org/wiki/Room_641A https://en.wikipedia.org/wiki/Room_641A

icebraining 9y ago
Which has absolutely nothing to do with whether Uber itself is required to record them.
- joering2 9y ago
  for sure more than your comment had.

Spooky23 9y ago

IANAL, but have dealt with ediscovery. Generally speaking you have latitude to do what you normally do within a medium. If you routinely delete mail every quarter, that’s ok. If you routinely record phone calls that’s ok. But there is no requirement to talk or write. Once you reasonably suspect that you are in the scope of an investigation or litigation, you need to take steps to preserve relevant things. Guidance from counsel is a good idea. Discovery is a double edged sword. Moving deliberative activity to phone calls or meetings doesn’t mean there is no record of the encounter. To the contrary, one or more parties are probably taking notes that align with their perceptions. (And self interest!) It all depends on the situation.