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I've never been a big fan of mandatory message retention. To me, it just seems like punishment for the literate. You don't make people under litigation holds

I've never been a big fan of mandatory message retention. To me, it just seems like punishment for the literate. You don't make people under litigation holds carry around a voice recorder all day, so you're giving people an out; if they are a more talkative person than a writing person. Since writing is harder than talking, this has always felt awfully unfair. As for the lack of messages in this case, they always say the coverup is worse than the crime, but if you don't know what the crime is, how can you be so sure?

vlovich123 3y ago
One difference is that writing and digital communication more broadly is a far more efficient communication mechanism than in person voice communications. > of using the ephemeral messaging app for months after the feds notified Amazon of the antitrust investigation I think switching to ephemeral messaging apps specifically in response to antitrust investigation is evidence of mens rea that you’re in an illicit conspiracy. As for the crime: > The FTC accused Amazon of creating a secret “Project Nessie” pricing algorithm that may have generated more than $1 billion in extra profits.) You can distrust the government or not believe their argument, but our criminal justice system does depend on the government being able to perform an investigation.
- nickff 3y ago
  Government officials are also known to be using non-governmental channels for official business, in violation of regulation, and avoiding accountability and transparency. It seems to me that whats’s sauce for the goose is sauce for the gander.
  - vlovich123 3y ago
    Unfortunately, that just leaves you in a low-trust dysfunctional society. The correct response is to make sure that all parties are behaving above board. Engaging in whataboutism just degrades society and honestly I thought most people learned to mature outside of this childish way of thinking after puberty.
    - nickff 3y ago
      I think we’re already in a low-trust state of affairs, at least with respect to the relationships between individuals and goverments. If the government trusts you so much, then why do they compel yourself to verify your identity to them so often? Why do they constantly threaten you with punishments?
      - vlovich123 2y ago
        I don’t disagree that we’re now in a low trust environment but you don’t get to a higher trust environment through further erosion of that trust. I’m not really sure what you’re talking about in terms of verifying your identity, but verification is 100% part of the “trust but verify” philosophy. You should be able to trust your government while simultaneously being able to verify they’re behaving above board. Also you have to be very careful to distinguish government vs individual, government vs small business, and government vs massive multinational. This is the last bucket and concerns in the former don’t really apply to this last bucket. None of this of course is relevant here - the government is saying that after they begin legal proceedings with Amazon, when Amazon would be under explicit orders to preserve documents and evidence, Amazon spoiled evidence. That’s a very serious accusation and lawyers don’t typically make such claims if they’re baseless because judges typically frown on claims that turn out to be baseless. If the government wins this argument in court, my understanding is that then there’s a presumption that all the documents were negative in Amazon’s favor.
- AnthonyMouse 2y ago
  > I think switching to ephemeral messaging apps specifically in response to antitrust investigation is evidence of mens rea that you’re in an illicit conspiracy. This theory assumes that the company believes the justice system is infallible. Suppose you're engaged in an illicit conspiracy and you find out there is an investigation. You'd want to stop writing things down that could prove your crimes, because you're guilty. Suppose you're not engaged in an illicit conspiracy and you find out there is an investigation. You'd want to stop writing things down that could be taken out of context in a malicious prosecution, because you're being investigated even though you're innocent, perhaps because of lobbying by your competitors who have it in for you, maybe because the prosecutor wants to run for office, but certainly for no good reason and therefore evidently for a bad reason. Since the expected behavior is the same in both cases, it provides no evidence of which case it is.
  - vlovich123 2y ago
    That’s not how the legal system works though. Once a legal proceeding begins, there’s typically an order from a judge to preserve evidence. Failure to do so can have serious consequences.
    - AnthonyMouse 2y ago
      Not preserving evidence and not generating evidence are two different things.
      - vlovich123 2y ago
        That’s not how it works if you’ve been under these kinds of legal proceedings. You have an order to retain all documents and communications regardless of what you think is relevant. So switching to an ephemeral messaging app would 100% be considered you not obeying the court order. Even in person meetings that aren’t documented as they normally would, could be construed as evidence of a conspiracy to destroy evidence.
        AnthonyMouse 2y ago
akira2501 3y ago
> I've never been a big fan of mandatory message retention It's the price of being publicly traded, which is born out of our lessons learned from the Enron scandal, and gave us incredibly simple SOX regulations, and decades of strange antipathy towards them. > it just seems like punishment for the literate. Are you suggesting that companies are eschewing written communication for verbal communication as a means of bypassing this legislation? And that it's unfair you have no similar bypass? That's a pretty morally relative take. > but if you don't know what the crime is, how can you be so sure? You've precisely described _why_ the coverup is seen as worse than the crime.
- elevatedastalt 3y ago
  OP is specifically comparing voice to text. So it has absolutely nothing to do with being publicly traded. In fact the FTC can investigate fully private companies too. Publicly traded or not, companies aren't expected to record all voice conversations done by their employees and retain those recordings for future court cases. That's the double-standard that OP is pointing out. There seems to be an expectation that text chat should be recorded and persisted and audio not. This is a vestige of an old era when text was for more "formal" or serious conversation and chat for informal. Today with IM-ing and remote work text can be as ephemeral as voice.
  - ProfessorLayton 3y ago
    That’s because there is a double standard when it comes to speaking vs writing things down. When a boss tells you to do something dubious within an organization is completely different than when they write that same thing down in a traceable manner. If it’s not in writing everything devolves into your-word-vs-mine, and the top chain of command quickly washes its hands from any blame. As the saying goes: “Get it in writing”
    - elevatedastalt 3y ago
      Yes, but technology lets us have ephemeral conversations, which are meant to replicate the temporariness of verbal conversations. That's what the "disappearing" messages of Signal are. And that's what the FTC claim is about. It's okay for text intended to be permanent to be held to the standard of permanent text. But creating an expectation that text that is fundamentally intended to be ephemeral should be treated as permanent text does not sound reasonable.
jprete 3y ago
Dodd-Frank in the US appears to require all financial institutions to record all conversations related to particular activities, despite the lack of an active lawsuit. It's very difficult to search for definite information about this, but the requirements may have the effect of forcing the recording of every conversation just in case it happens to touch on trading activities or another recording-required topic.
woooooo 3y ago
It's also some implicit protection for workers. If someone is asking for something shady, you can ask for it in writing.
- ethbr1 3y ago
  And not only can you, but you should, if you're concerned about the ask. If they have a strong aversion to putting it down in writing, then that's a red flag you shouldn't do it.
reindeergmz 3y ago
[dead]
cjpearson 3y ago
It's a different agency, but Matt Levine has written a fair amount on the SEC making a killing by fining banks when their employees use SMS or WhatsApp. It's a similar story where conversations that might have been held at the water cooler, lunch, after-work beers or the golf course are now often done through text which according to SEC means different regulation applies. > From the perspective of the banks, I have argued, this is a novel expansion of the SEC’s authority. When the SEC created its rules on recordkeeping, it required banks to retain copies of their “inter-office memoranda,” but it was 1948 and those memoranda were produced with carbon paper; they were formal business records memorializing serious policies. In the 2020s, WhatsApp chats are, in large part, substitutes not for formal memoranda but for talking to someone in person. When I was a banker, I have written, “There were some mornings when I sent more than 100 inter-office memoranda, though like 20 of them would be ‘lol’ or ‘fml.’” In 1948, the SEC would not have dreamed of demanding a searchable archive of all of the informal chats held at a brokerage: That was not technologically feasible, and also did not seem to be the point of its rules. In 2022, it was feasible, and the SEC did demand it, and when the brokers were missing some chats they paid a billion dollars in fines.
lsllc 3y ago
"Never write if you can speak; never speak if you can nod; never nod if you can wink." Not sure of the origin, possibly Martin Lomasney.
- morkalork 3y ago
  The version I remember is "Never email what you can say on the phone, never say on the phone what you can say in person".
  - lsllc 3y ago
    Martin Lomasney lived from 1859-1933, so I suppose it was around the time (1876) that Alexander Graham Bell invented the telephone, but he certainly predates email! https://en.wikipedia.org/wiki/Martin_Lomasney https://en.wikipedia.org/wiki/Martin_Lomasney https://thewestendmuseum.org/news/the-life-legend-and-lessons-of-martin-lomasney-ward-boss-west-end-icon/ https://thewestendmuseum.org/news/the-life-legend-and-lesson...
    - morkalork 2y ago
      It is absolutely mind boggling to find out what I heard is a bastardizion of a century old quote. Wow.
      - brewtide 2y ago
        Usenet was on fire when it came out.
        defrost 2y ago
        UUCP style address exchanges were banging.
        brewtide 2y ago
        Talk was like a WPM contest.
pessimizer 3y ago
> I've never been a big fan of mandatory message retention. To me, it just seems like punishment for the literate. You could see it in a different way, such as being a requirement that only catches the dumbest of criminals, repeatedly.
mlinhares 3y ago
People always have the option of not committing crimes as well, that removes the worry of work communications being recorded
- pylua 3y ago
  A civil dispute does not imply a crime has been committed. Being sued does not imply wrong doing.
- _imnothere 3y ago
  Are you simply saying the infamous "nothing-to-hide" quote in another way? That's ridiculous.
  - mlinhares 2y ago
    Yes, at work you should have nothing to hide, specially if you're an employee cos the employer will surely let the bus drive over you and then drive in reverse just to be sure there's no risk of you being alive.
- brevitea 2y ago
  Amazon will just fire and replace you with someone who will commit crimes. Happens quite often, usually via a "PIP".
  - mlinhares 2y ago
    And that's fine, not a chance I'd ever commit a crime for ANY employer. I've had to ask managers to sign off on shit I knew was unlawful before and I'd do it again in the blink of an eye. No salary is worth the risk of going to jail. It's just another job.
    - acuozzo 2y ago
      A manager authorizing you to commit a crime hardly absolves you of wrongdoing, legally or morally.
lamontcg 2y ago
> I've never been a big fan of mandatory message retention. I think all corporate communications should be preserved indefinitely. Deletion or using apps like signal to avoid retention should be used against the corporation in court.

vlovich123 3y ago

One difference is that writing and digital communication more broadly is a far more efficient communication mechanism than in person voice communications. > of using the ephemeral messaging app for months after the feds notified Amazon of the antitrust investigation I think switching to ephemeral messaging apps specifically in response to antitrust investigation is evidence of mens rea that you’re in an illicit conspiracy. As for the crime: > The FTC accused Amazon of creating a secret “Project Nessie” pricing algorithm that may have generated more than $1 billion in extra profits.) You can distrust the government or not believe their argument, but our criminal justice system does depend on the government being able to perform an investigation.

nickff 3y ago
Government officials are also known to be using non-governmental channels for official business, in violation of regulation, and avoiding accountability and transparency. It seems to me that whats’s sauce for the goose is sauce for the gander.
- vlovich123 3y ago
  Unfortunately, that just leaves you in a low-trust dysfunctional society. The correct response is to make sure that all parties are behaving above board. Engaging in whataboutism just degrades society and honestly I thought most people learned to mature outside of this childish way of thinking after puberty.
  - nickff 3y ago
    I think we’re already in a low-trust state of affairs, at least with respect to the relationships between individuals and goverments. If the government trusts you so much, then why do they compel yourself to verify your identity to them so often? Why do they constantly threaten you with punishments?
    - vlovich123 2y ago
      I don’t disagree that we’re now in a low trust environment but you don’t get to a higher trust environment through further erosion of that trust. I’m not really sure what you’re talking about in terms of verifying your identity, but verification is 100% part of the “trust but verify” philosophy. You should be able to trust your government while simultaneously being able to verify they’re behaving above board. Also you have to be very careful to distinguish government vs individual, government vs small business, and government vs massive multinational. This is the last bucket and concerns in the former don’t really apply to this last bucket. None of this of course is relevant here - the government is saying that after they begin legal proceedings with Amazon, when Amazon would be under explicit orders to preserve documents and evidence, Amazon spoiled evidence. That’s a very serious accusation and lawyers don’t typically make such claims if they’re baseless because judges typically frown on claims that turn out to be baseless. If the government wins this argument in court, my understanding is that then there’s a presumption that all the documents were negative in Amazon’s favor.
AnthonyMouse 2y ago
> I think switching to ephemeral messaging apps specifically in response to antitrust investigation is evidence of mens rea that you’re in an illicit conspiracy. This theory assumes that the company believes the justice system is infallible. Suppose you're engaged in an illicit conspiracy and you find out there is an investigation. You'd want to stop writing things down that could prove your crimes, because you're guilty. Suppose you're not engaged in an illicit conspiracy and you find out there is an investigation. You'd want to stop writing things down that could be taken out of context in a malicious prosecution, because you're being investigated even though you're innocent, perhaps because of lobbying by your competitors who have it in for you, maybe because the prosecutor wants to run for office, but certainly for no good reason and therefore evidently for a bad reason. Since the expected behavior is the same in both cases, it provides no evidence of which case it is.
- vlovich123 2y ago
  That’s not how the legal system works though. Once a legal proceeding begins, there’s typically an order from a judge to preserve evidence. Failure to do so can have serious consequences.
  - AnthonyMouse 2y ago
    Not preserving evidence and not generating evidence are two different things.
    - vlovich123 2y ago
      That’s not how it works if you’ve been under these kinds of legal proceedings. You have an order to retain all documents and communications regardless of what you think is relevant. So switching to an ephemeral messaging app would 100% be considered you not obeying the court order. Even in person meetings that aren’t documented as they normally would, could be construed as evidence of a conspiracy to destroy evidence.
      - AnthonyMouse 2y ago

akira2501 3y ago

> I've never been a big fan of mandatory message retention It's the price of being publicly traded, which is born out of our lessons learned from the Enron scandal, and gave us incredibly simple SOX regulations, and decades of strange antipathy towards them. > it just seems like punishment for the literate. Are you suggesting that companies are eschewing written communication for verbal communication as a means of bypassing this legislation? And that it's unfair you have no similar bypass? That's a pretty morally relative take. > but if you don't know what the crime is, how can you be so sure? You've precisely described _why_ the coverup is seen as worse than the crime.

elevatedastalt 3y ago
OP is specifically comparing voice to text. So it has absolutely nothing to do with being publicly traded. In fact the FTC can investigate fully private companies too. Publicly traded or not, companies aren't expected to record all voice conversations done by their employees and retain those recordings for future court cases. That's the double-standard that OP is pointing out. There seems to be an expectation that text chat should be recorded and persisted and audio not. This is a vestige of an old era when text was for more "formal" or serious conversation and chat for informal. Today with IM-ing and remote work text can be as ephemeral as voice.
- ProfessorLayton 3y ago
  That’s because there is a double standard when it comes to speaking vs writing things down. When a boss tells you to do something dubious within an organization is completely different than when they write that same thing down in a traceable manner. If it’s not in writing everything devolves into your-word-vs-mine, and the top chain of command quickly washes its hands from any blame. As the saying goes: “Get it in writing”
  - elevatedastalt 3y ago
    Yes, but technology lets us have ephemeral conversations, which are meant to replicate the temporariness of verbal conversations. That's what the "disappearing" messages of Signal are. And that's what the FTC claim is about. It's okay for text intended to be permanent to be held to the standard of permanent text. But creating an expectation that text that is fundamentally intended to be ephemeral should be treated as permanent text does not sound reasonable.

jprete 3y ago

Dodd-Frank in the US appears to require all financial institutions to record all conversations related to particular activities, despite the lack of an active lawsuit. It's very difficult to search for definite information about this, but the requirements may have the effect of forcing the recording of every conversation just in case it happens to touch on trading activities or another recording-required topic.

woooooo 3y ago

It's also some implicit protection for workers. If someone is asking for something shady, you can ask for it in writing.

ethbr1 3y ago
And not only can you, but you should, if you're concerned about the ask. If they have a strong aversion to putting it down in writing, then that's a red flag you shouldn't do it.

reindeergmz 3y ago

[dead]

cjpearson 3y ago

It's a different agency, but Matt Levine has written a fair amount on the SEC making a killing by fining banks when their employees use SMS or WhatsApp. It's a similar story where conversations that might have been held at the water cooler, lunch, after-work beers or the golf course are now often done through text which according to SEC means different regulation applies. > From the perspective of the banks, I have argued, this is a novel expansion of the SEC’s authority. When the SEC created its rules on recordkeeping, it required banks to retain copies of their “inter-office memoranda,” but it was 1948 and those memoranda were produced with carbon paper; they were formal business records memorializing serious policies. In the 2020s, WhatsApp chats are, in large part, substitutes not for formal memoranda but for talking to someone in person. When I was a banker, I have written, “There were some mornings when I sent more than 100 inter-office memoranda, though like 20 of them would be ‘lol’ or ‘fml.’” In 1948, the SEC would not have dreamed of demanding a searchable archive of all of the informal chats held at a brokerage: That was not technologically feasible, and also did not seem to be the point of its rules. In 2022, it was feasible, and the SEC did demand it, and when the brokers were missing some chats they paid a billion dollars in fines.

lsllc 3y ago

"Never write if you can speak; never speak if you can nod; never nod if you can wink." Not sure of the origin, possibly Martin Lomasney.

morkalork 3y ago
The version I remember is "Never email what you can say on the phone, never say on the phone what you can say in person".
- lsllc 3y ago
  Martin Lomasney lived from 1859-1933, so I suppose it was around the time (1876) that Alexander Graham Bell invented the telephone, but he certainly predates email! https://en.wikipedia.org/wiki/Martin_Lomasney https://en.wikipedia.org/wiki/Martin_Lomasney https://thewestendmuseum.org/news/the-life-legend-and-lessons-of-martin-lomasney-ward-boss-west-end-icon/ https://thewestendmuseum.org/news/the-life-legend-and-lesson...
  - morkalork 2y ago
    It is absolutely mind boggling to find out what I heard is a bastardizion of a century old quote. Wow.
    - brewtide 2y ago
      Usenet was on fire when it came out.
      - defrost 2y ago
        UUCP style address exchanges were banging.
        brewtide 2y ago
        Talk was like a WPM contest.

pessimizer 3y ago

> I've never been a big fan of mandatory message retention. To me, it just seems like punishment for the literate. You could see it in a different way, such as being a requirement that only catches the dumbest of criminals, repeatedly.

mlinhares 3y ago

People always have the option of not committing crimes as well, that removes the worry of work communications being recorded

pylua 3y ago
A civil dispute does not imply a crime has been committed. Being sued does not imply wrong doing.
_imnothere 3y ago
Are you simply saying the infamous "nothing-to-hide" quote in another way? That's ridiculous.
- mlinhares 2y ago
  Yes, at work you should have nothing to hide, specially if you're an employee cos the employer will surely let the bus drive over you and then drive in reverse just to be sure there's no risk of you being alive.
brevitea 2y ago
Amazon will just fire and replace you with someone who will commit crimes. Happens quite often, usually via a "PIP".
- mlinhares 2y ago
  And that's fine, not a chance I'd ever commit a crime for ANY employer. I've had to ask managers to sign off on shit I knew was unlawful before and I'd do it again in the blink of an eye. No salary is worth the risk of going to jail. It's just another job.
  - acuozzo 2y ago
    A manager authorizing you to commit a crime hardly absolves you of wrongdoing, legally or morally.

lamontcg 2y ago

> I've never been a big fan of mandatory message retention. I think all corporate communications should be preserved indefinitely. Deletion or using apps like signal to avoid retention should be used against the corporation in court.