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«COMMENT Snap and Destroy: Preservation Issues for Ephemeral Communications RYAN G. GANZENMULLER† INTRODUCTION In an Internet age where “delete” ...»

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COMMENT

Snap and Destroy: Preservation Issues for

Ephemeral Communications

RYAN G. GANZENMULLER†

INTRODUCTION

In an Internet age where “delete” no longer means “gone

forever,” the desire for short-lived communications has

risen.1 The founder of Wickr, a mobile application for

impermanent media, opined that “[e]phemeral data is the

future.”2 This is supported by the meteoric rise of Snapchat,

the self-destructing photo application that has grown into a startup valuated at an estimated $10 billion just three years after its founding.3 While Snapchat thrives in younger † Editor-in-Chief, Buffalo Law Review; J.D. Candidate, 2015, SUNY Buffalo Law School; B.A., 2012, Binghamton University. Special thanks to Professor Christine Bartholomew for her invaluable guidance on this Comment and throughout law school. Thanks also to Professor Mark Bartholomew for his advice and to Anna Kreiter and Brooke Leone for critiquing my draft. I am grateful for the love and support of my family and friends, especially the ones who sent me countless Snaps to inspire this Comment. Finally, thanks to the Buffalo Law Review members for their efforts, my Editorial Board members for their unending hard work and dedication, and Erin Connare for her editorial work on this Comment.

1. John G. Browning, Burn after Reading: Preservation and Spoliation of Evidence in the Age of Facebook, 16 SMU SCI. & TECH. L. REV. 273, 275, 306 (2013) [hereinafter Browning, Burn after Reading]; Felix Gillette, Snapchat and the Erasable Future of Social Media, BLOOMBERG BUSINESSWEEK (Feb. 7, 2013), http://www.businessweek.com/articles/2013-02-07/snapchat-and-the-erasablefuture-of-social-media.

2. Gillette, supra note 1.

3. Serena Saitto, Snapchat Said to Close Yahoo Funding, Still Raising Money, BLOOMBERG (Oct. 22, 2014), http://www.bloomberg.com/news/2014-10-22/ snapchat-said-to-close-yahoo-funding-still-raising-money.html. This valuation 1240 BUFFALO LAW REVIEW [Vol. 62 demographics,4 Vaporstream is making a name for itself among corporate elites who wish to communicate discreetly with vanishing messages.5 Apps for “exploding” communications are appearing one after another, showing no signs of slowing down.6 The proliferation of these services demonstrates a shift in how we wish to connect with one another, and more importantly, the trail we leave behind in doing so.7 For parties involved in litigation, there is reason to be mindful of social media. One study found eighty-one percent of surveyed matrimonial attorneys had discovered and used social networking evidence in cases.8 Attorneys in products liability, personal injury, criminal, employment, intellectual property, defamation, insurance, and securities litigation have all reported finding crucial case information on social media sites.9 Across the country, courts have made preservation rulings on cases in which Facebook users have strengthened profile privacy settings, changed default profile pictures, deleted wall posts, deactivated accounts, and even sent taunting messages to opposing counsel.10 Additionally, one survey found fifty-seven percent of all application users figure rose to $10 billion after being valuated at an estimated $4 billion less than one year earlier. Evelyn M. Rusli & Douglas MacMillan, Snapchat Mulls Raising Money at $3 to $4 Billion Valuation, WALL ST. J. BLOG (Oct. 25, 2013), http://blogs.wsj.com/digits/2013/10/25/snapchat-mulls-raising-money-at-3-4billion-valuation.

4. Nicole A. Poltash, Comment, Snapchat and Sexting: A Snapshot of Baring Your Bare Essentials, 19 RICH. J.L. & TECH. 14, 16 (2013).

5. See Browning, Burn after Reading, supra note 1, at 307.

6. See id. at 306-07; see, e.g., Jay Yarow, There’s A New App That Lets People Send Self Destructing Messages. It Wants To Be Snapchat For Professionals, BUSINESS INSIDER (Jan. 8, 2014, 10:47 AM), http://www.businessinsider.com/ confide-a-snapchat-for-professionals-2014-1.

7. See Woodrow Hartzog, The Second Wave of Global Privacy Protection:

Social Data, 74 OHIO ST. L.J. 995, 1016-17 (2013).

8. John G. Browning, Digging for Digital Dirt: Discovery and Use of Evidence from Social Media Sites, 14 SMU SCI. & TECH. L. REV. 465, 467 (2011).

9. Id.

10. Browning, Burn after Reading, supra note 1, at 285-86, 291-305.

2014] SNAP AND DESTROY 1241 have installed, uninstalled, or declined to install an “app” due to privacy concerns.11 The tipping point may have been recent revelations about the National Security Agency (NSA) and its domestic surveillance operations.12 Whistleblower Edward Snowden revealed that the NSA conducts highly invasive surveillance on American citizens and others, collecting more personal and private information than the public knew.13 The outcry was monumental, as the extent of the United States’ privacyunfriendly exploits was previously undisclosed. 14 As one author poignantly stated, “[t]hat was then: we are all on notice now.”15 Given this background, it is not difficult to see why selfdestructing communication technologies have spiked and made it “easier for a person’s bad decisions to vanish into thin air.”16 One author writes that “Snapchat’s self-destructing messages make users feel immune from repercussions.”17 A study found that seventy-seven percent of college students use Snapchat once per day.18 As of October 2014, Snapchat





11. Gillette, supra note 1.

12. See A. Michael Froomkin, “PETs Must Be on a Leash”: How U.S. Law (and Industry Practice) Often Undermines and Even Forbids Valuable Privacy Enhancing Technology, 74 OHIO ST. L.J. 965, 978-79 (2013).

13. See id.

14. See id; see also Heather Kelly, Protests against the NSA spring up across U.S., CNN (July 5, 2013), http://edition.cnn.com/2013/07/04/tech/web/restore-nsaprotests; Bart Jansen & Carolyn Pesce, Anti-NSA rally attracts thousands to march in Washington, U.S.A. TODAY (Oct. 26, 2013), http://www.usatoday.com/ story/news/nation/2013/10/26/nsa-dc-rally/3241417.

15. Froomkin, supra note 12, at 994.

16. Browning, Burn after Reading, supra note 1, at 306.

17. Poltash, supra note 4, 38. Poltash's article is the only article to date written exclusively about Snapchat’s relation to the law, specifically regarding sexting. Accordingly, it has been cited frequently, including reference in several Virginia statutes. See, e.g., VA. CODE ANN. §§ 18.2-152.7:1, 18.2-216.1, 18.2-390, 22.1-70.2, 22.1-279.6, 42.1-36.1.

18. See Kurt Wagner, Study Finds 77% of College Students Use Snapchat Daily, MASHABLE (Feb. 24, 2014), http://www.mashable.com/2014/02/24/ snapchat-study-college-students.

1242 BUFFALO LAW REVIEW [Vol. 62 users were sending 700 million images per day.19 Vaporstream’s website boasts that its clandestine communications are “no different than talking face-to-face over lunch or at the water cooler.”20 Other apps such as Wickr, Gryphn, TigerText, Burn Note, and Ansa use encryption to send self-destructing texts, videos, images, and documents. 21 On January 8, 2014, as this Comment was being written, a new app was unveiled called Confide; its founders touted it as the “professional counterpoint to Snapchat.”22 On January 24, 2014, another Snapchat-like app appeared called Secret Square, founded by a Vaporstream executive.23 On May 13, 2014, Yahoo purchased a self-destructing mobile messaging startup named Blink for an undisclosed amount.24 Paired with Facebook’s highly publicized failure to acquire Snapchat―twice25―it is clear the big players in the tech

19. Saitto, supra note 3. This figure has doubled since October 2013, when users were sending 350 million images per day. Micah Schaffer, Who Can View My Snaps and Stories, SNAPCHAT BLOG (Oct. 14, 2013, 11:23 AM), http://blog.snapchat.com/post/64036804085/who-can-view-my-snaps-and-stories.

20. FAQ, VAPORSTREAM, https://www.benegourmet.com/faq (last visited Sept.

29, 2014) [hereinafter Vaporstream FAQ] (copies on file with Buffalo Law Review). Sometime after this Comment was written in early 2014, Vaporstream changed its entire website and, curiously, removed nearly all of the controversial language cited throughout this Comment. The website cited above preserved the older version of the website. Compare Vaporstream FAQ, supra, with FAQ, VAPORSTREAM, https://www.vaporstream.com/faq (last visited Sept. 29, 2014).

21. Browning, Burn after Reading, supra note 1, at 306-07; Belinda Luscombe, TigerText: An iPhone App for Cheating Spouses?, TIME (Feb. 26, 2010), http://content.time.com/time/business/article/0,8599,1968233,00.html; Burning Questions: Privacy Info From Burn Note, BURN NOTE, http://info.

burnnote.com/about (last visited Feb. 6, 2014) [hereinafter Burning Questions].

22. Yarow, supra note 6.

23. Edward Cox, Northwestern alum creates Snapchat-like app, DAILY NORTHWESTERN (Jan. 26, 2014), http://dailynorthwestern.com/2014/01/26/ campus/northwestern-alum-creates-snapchat-like-app.

24. Benjamin Horney, Yahoo Buys Self-Destruct Mobile Messaging App Blink, LAW360 (May 14, 2014. 1:18, PM), http://www.law360.com/articles/537699/yahoobuys-self-destruct-mobile-messaging-app-blink.

25. First, Snapchat CEO Evan Spiegel declined a $1 billion offer from Facebook CEO Mark Zuckerberg, as Snapchat valued its worth at closer to $3 to $4 billion.

See Rusli & MacMillan, supra note 3 and accompanying text. Then, when Zuckerberg offered Spiegel $3 billion, Spiegel rebuffed that as well, reportedly infuriating Zuckerberg. See Seth Fiegerman, Snapchat CEO Reveals Why He 2014] SNAP AND DESTROY 1243 market want to venture into this field. The futuristic 1960s Mission: Impossible messages that would “self-destruct in five seconds” have not only become a reality, but are now in exceedingly high demand.26 In fact, the demand has become so great that almighty Apple is integrating ephemeral technology into its products.

In unveiling the newest iPhone operating system, iOS 8, Apple announced that all audio, photo, and video iMessages27 will vanish unless users change the settings.28 Users can choose self-destruct settings just like Snapchat.29 Further, Apple redesigned its messaging and camera interfaces to compete with the easy use of Snapchat.30 Apple marketed the feature as a means of saving phone memory, but many view this as “clearly an assault on Snapchat.”31 Regardless of the motive, hundreds of millions of iPhone users worldwide will all soon have an ephemeral data device in their pockets―a tool for “selfie-destruction”―and they will not have to go to the AppStore32 to get it.

Rejected Facebook’s $3 Billion Offer, MASHABLE (Jan. 6, 2014), http://mashable.com/2014/01/06/snapchat-facebook-acquisition-2; Evelyn M.

Rusli & Douglas MacMillan, Snapchat Spurned $3 Billion Acquisition Offer from Facebook, WALL ST. J. BLOG (Nov. 13, 2013, 1:43 PM), http://blogs.wsj.com/digits/2013/11/13/snapchat-spurned-3-billion-acquisitionoffer-from-facebook. Thereafter, Zuckerberg even attempted to “crush” Snapchat by releasing a similar app called Poke, which failed embarrassingly. See Fiegerman, supra; see also Mark Milian, Zuckerberg's Snapchat Envy Isn't Disappearing, BLOOMBERG (Aug. 14, 2014), http://www.bloomberg.com/ news/2014-08-14/zuckerberg-s-snapchat-envy-isn-t-disappearing.html.

26. See Browning, Burn after Reading, supra note 1, at 308.

27. iMessages are communications sent between one or more iMessageenabled iPhones. Apple’s new ephemeral technology will apply only to these messages. Jacob Kleinman, Apple Takes on Snapchat with Self-Destructing Messages in iOS 8, TECHNOBUFFALO (June 2, 2014), http://www.technobuffalo.com /2014/06/02/apple-takes-on-snapchat-with-self-destructing-messages-in-ios-8.

28. Brandon Griggs, Big Changes Coming to iPhone Messaging, CNN (June 3, 2014), http://www.cnn.com/2014/06/03/tech/mobile/apple-messages-app/index.

html?hpt=hp_t2; Kleinman, supra note 27.

29. See Kleinman, supra note 27.

30. Id.

31. See id.

32. The AppStore is Apple’s highly regulated smartphone application marketplace, where users can download apps like Snapchat, Wickr, and the like.

1244 BUFFALO LAW REVIEW [Vol. 62 The downside of such growth, however, is the propensity for such services to be used for illegal activity.33 Some sign up for ephemeral data apps because they know preserved data would be a problem as they go about their dirty deeds. That incriminating “selfie”34 you took? Good thing you used Snapchat.35 That insider trading tip you sent? Thank God for Vaporstream.36 As is often the case, the law is lagging behind these advancements in technology.37 While the applicable Federal Rules of Civil Procedure have been amended to keep up with some technological developments, the old rules never contemplated a situation in which, by design, discoverable information could disappear without a trace. This is unlike standard spoliation, where parties destroy evidence themselves.38 This is different than merely deleting a discoverable Facebook post.39 Here, evidence destroys itself because the party chooses a self-destroying data program to communicate.40 So what happens when you bring together an antiquated set of rules designed to preserve evidence for parties, and applications designed to eradicate evidence for their opponents? Could mere use of Snapchat or Vaporstream constitute spoliation? These issues become even more complex with the latest wrinkles in Snapchat’s software.

While Snapchat recipients have always been able to screenshot an image in order to preserve it, now users have

33. See Browning, Burn after Reading, supra note 1, at 308; Poltash, supra note 4, 21-22.

34. A “selfie” is a photograph one takes of oneself. The explosion of social media caused usage of the new term to skyrocket, earning it a place in the dictionary and the honor of being 2013 Oxford Word of the Year. See Ben Brumfield, Selfie named word of the year for 2013, CNN (Nov. 20, 2013, 12:29 AM), http://www.cnn.com/2013/11/19/living/selfie-word-of-the-year.

35. See Browning, Burn after Reading, supra note 1, at 306.

36. Id. at 307-08.

37. Id. at 308.

38. See id. at 274-75.

39. See id. at 295-97.

40. See id. at 275.



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