4 ms·

Not familiar with the details in this case, but it makes total sense to me that an "off the record" chat doesn't need to be preserved, even by a court order to

Not familiar with the details in this case, but it makes total sense to me that an "off the record" chat doesn't need to be preserved, even by a court order to keep all records. Let's assume there is a chat app that is officially designed to be off-the-record, and everyone who uses it assumes it is off-the-record. Let's assume technology-wise, there are indeed no records kept, everything is ephemeral. Should the court order then apply to those chats? I don't think so, just as a court order doesn't apply to a live conversation which isn't recorded. Now assume that the programmer of the app made an error, and accidentally records are kept for 24 hours. Should the court order now apply to those records? Doesn't seem to be a clear-cut case to me.

ranting-moth 4y ago
It's very clear-cut. The topic is about deleting data. There's a massive difference in deleting records that did exists vs. records that never existed in the first place. The former is deleting data, the second case isn't.
- auggierose 4y ago
  I think I explained why it isn't that clear-cut, even when it is about deleting data. I guess that's why there are courts, and not only HN opinions.
  - nolok 4y ago
    It is clear cut. Let's give you a concrete exemple we have had rulings on without any computer involved, which are almost a 1:1 situation: you are on litigation hold, and aren't allowed to destroy any records. You do an oral meeting, with no plans to put it on paper. Unknown to you, someone took notes during the meeting, say your secretary because she didn't feel well that day and wanted to be sure to remember it the next day. Although those notes were not planned to exist, once they do destroying them is destroying records, and you're in violation of the litigation hold. You may not notice her take note, and then see her pull the notes our of her bag the next day and at that point it's illegal for you to ask her to destroy them.
    - auggierose 4y ago
      What if she used the notes, and then destroyed them herself, without me ever noticing anything?
      - nolok 4y ago
        It's still a violation by the company. For obvious reason, otherwise you find a "fall guy" to do just that and "oh I was not aware I shouldn't delete this stack of documents".
    - devrand 4y ago
      I'm not sure that's a comparable situation as someone explicitly took an action to make a record. In the case of Chat it's all software automation. No one is explicitly taking an action to make a record or destroy a record. There is the whole situation of people asking to switch to the no history mode, but that's not retroactively applied and it's really no different than sending an email that says "let's talk about this over the phone". The real open question is whether Chats can have a temporary nature to them as they are inherently a written record. But there's also other situations where you can have a written record, for example, if someone uses auto-captions on a video call. They're very short-lived, but they did exist for some duration.
      - nolok 4y ago
        > I'm not sure that's a comparable situation as someone explicitly took an action to make a record. In the case of Chat it's all software automation. No one is explicitly taking an action to make a record or destroy a record. I am not sure why you are making this distinction when it doesn't exists. Litigation hold also means stop all software automation that would result in destruction of record, doesn't matter how many people know about it. Case in point: that is what happens to their 30 days old chat. This is the same thing if you trigger a litigation hold on your office365 account or whatever. And for the rest of your point: not only does the law not accept the "oh but I didn't know", for the obvious reason that then it's an easy out, but even if they did tolerate extreme exemple of it Google cannot in good faith claim lack of knowledge about THEIR OWN system, the litigation hold was not for those specific people who may or may not know it, it was for the company who is then in charge of ensuring their IT team does what the court ordered.
WastingMyTime89 4y ago
You are answering your own question yourself. Read carefully and notice how you use the world record in your post. > Let's assume technology-wise, there are indeed no records kept, everything is ephemeral. Should the court order then apply to those chats? No, there is no record to be kept. > Now assume that the programmer of the app made an error, and accidentally records are kept for 24 hours. Should the court order now apply to those records? Yes, the court order applies indiscriminately to all records no matter why or how they were made.
- auggierose 4y ago
  Let's assume I said this instead: > Now assume that the programmer of the app made an error, and accidentally DATA is kept for 24 hours. As part of the error, the DATA is also automatically deleted after 24 hours. What now?
  - WastingMyTime89 4y ago
    Nothing changed. You know it’s a record. That’s why it’s the word you naturally used to describe it. It’s not some kind of complex trick question.
    - auggierose 4y ago
      I don't know it's a record, it's just a word I used. Now I use a different word, which is more appropriate in the context of a HN reader trying to misunderstand what I am saying. Because the question is exactly: Does this data constitute a record, or not? Just saying it does is not an answer.
      - WastingMyTime89 4y ago
        It does constitute a record. You yourself spontaneously used the word record to talk about it. No one is trying to misunderstand what you are saying. You want there to be some kind of big tricky debate to be had about what kind of data is or isn’t a record. There is none. People know what a record is and when they encounter one. If you are storing something for a time, you have a record of it. It really is that simple.
Lazare 4y ago
> it makes total sense to me that an "off the record" chat doesn't need to be preserved, even by a court order to keep all records. Let's assume there is a chat app that is officially designed to be off-the-record, You cannot officially designate anything to be "off the record". That's just not a thing that the legal system recognises - the closest thing might be attorney-client privilege, and that's not relevant here, so none of your analysis applies.
zeckalpha 4y ago
Off the record chat is about encryption and MITM rather than retention. https://en.m.wikipedia.org/wiki/Off-the-Record_Messaging https://en.m.wikipedia.org/wiki/Off-the-Record_Messaging
- auggierose 4y ago
  Interesting, but really not relevant.

ranting-moth 4y ago

It's very clear-cut. The topic is about deleting data. There's a massive difference in deleting records that did exists vs. records that never existed in the first place. The former is deleting data, the second case isn't.

auggierose 4y ago
I think I explained why it isn't that clear-cut, even when it is about deleting data. I guess that's why there are courts, and not only HN opinions.
- nolok 4y ago
  It is clear cut. Let's give you a concrete exemple we have had rulings on without any computer involved, which are almost a 1:1 situation: you are on litigation hold, and aren't allowed to destroy any records. You do an oral meeting, with no plans to put it on paper. Unknown to you, someone took notes during the meeting, say your secretary because she didn't feel well that day and wanted to be sure to remember it the next day. Although those notes were not planned to exist, once they do destroying them is destroying records, and you're in violation of the litigation hold. You may not notice her take note, and then see her pull the notes our of her bag the next day and at that point it's illegal for you to ask her to destroy them.
  - auggierose 4y ago
    What if she used the notes, and then destroyed them herself, without me ever noticing anything?
    - nolok 4y ago
      It's still a violation by the company. For obvious reason, otherwise you find a "fall guy" to do just that and "oh I was not aware I shouldn't delete this stack of documents".
  - devrand 4y ago
    I'm not sure that's a comparable situation as someone explicitly took an action to make a record. In the case of Chat it's all software automation. No one is explicitly taking an action to make a record or destroy a record. There is the whole situation of people asking to switch to the no history mode, but that's not retroactively applied and it's really no different than sending an email that says "let's talk about this over the phone". The real open question is whether Chats can have a temporary nature to them as they are inherently a written record. But there's also other situations where you can have a written record, for example, if someone uses auto-captions on a video call. They're very short-lived, but they did exist for some duration.
    - nolok 4y ago
      > I'm not sure that's a comparable situation as someone explicitly took an action to make a record. In the case of Chat it's all software automation. No one is explicitly taking an action to make a record or destroy a record. I am not sure why you are making this distinction when it doesn't exists. Litigation hold also means stop all software automation that would result in destruction of record, doesn't matter how many people know about it. Case in point: that is what happens to their 30 days old chat. This is the same thing if you trigger a litigation hold on your office365 account or whatever. And for the rest of your point: not only does the law not accept the "oh but I didn't know", for the obvious reason that then it's an easy out, but even if they did tolerate extreme exemple of it Google cannot in good faith claim lack of knowledge about THEIR OWN system, the litigation hold was not for those specific people who may or may not know it, it was for the company who is then in charge of ensuring their IT team does what the court ordered.

WastingMyTime89 4y ago

You are answering your own question yourself. Read carefully and notice how you use the world record in your post. > Let's assume technology-wise, there are indeed no records kept, everything is ephemeral. Should the court order then apply to those chats? No, there is no record to be kept. > Now assume that the programmer of the app made an error, and accidentally records are kept for 24 hours. Should the court order now apply to those records? Yes, the court order applies indiscriminately to all records no matter why or how they were made.

auggierose 4y ago
Let's assume I said this instead: > Now assume that the programmer of the app made an error, and accidentally DATA is kept for 24 hours. As part of the error, the DATA is also automatically deleted after 24 hours. What now?
- WastingMyTime89 4y ago
  Nothing changed. You know it’s a record. That’s why it’s the word you naturally used to describe it. It’s not some kind of complex trick question.
  - auggierose 4y ago
    I don't know it's a record, it's just a word I used. Now I use a different word, which is more appropriate in the context of a HN reader trying to misunderstand what I am saying. Because the question is exactly: Does this data constitute a record, or not? Just saying it does is not an answer.
    - WastingMyTime89 4y ago
      It does constitute a record. You yourself spontaneously used the word record to talk about it. No one is trying to misunderstand what you are saying. You want there to be some kind of big tricky debate to be had about what kind of data is or isn’t a record. There is none. People know what a record is and when they encounter one. If you are storing something for a time, you have a record of it. It really is that simple.

Lazare 4y ago

> it makes total sense to me that an "off the record" chat doesn't need to be preserved, even by a court order to keep all records. Let's assume there is a chat app that is officially designed to be off-the-record, You cannot officially designate anything to be "off the record". That's just not a thing that the legal system recognises - the closest thing might be attorney-client privilege, and that's not relevant here, so none of your analysis applies.

zeckalpha 4y ago

Off the record chat is about encryption and MITM rather than retention. https://en.m.wikipedia.org/wiki/Off-the-Record_Messaging https://en.m.wikipedia.org/wiki/Off-the-Record_Messaging

auggierose 4y ago
Interesting, but really not relevant.