The DOJ recently updated mobile communications compliance guidelines. Matt Rasmussen of ModeOne discussed the DOJ’s new guidelines in this article!

In Corporate Counsel (Navigating Mobile Communications Compliance Under the DOJ’s New Guidelines, available here), Matt discusses how, in January, the DOJ updated its 2023 guidelines that cracked down on the use of personal devices and third-party messaging apps in business to address companies’ increased use of collaboration and information sharing tools and ephemeral messaging platforms.

Why?

Fractured Communications and the “Blind Eye” Strategy

Today, the corporate communications landscape is more fractured than ever before, distributed across a variety of different devices (including personal devices), platforms, apps, and services, causing two key outcomes to happen at once:

1. The fragmentation has made it harder for the DOJ to regulate communications, conduct investigations, and take meaningful action against illegal business activity with so much of company messaging happening outside of regulated channels.
2. The fragmentation has also made it harder for companies to create effective policy around corporate communications––and enforce it.

Historically, DOJ regulations have been slow to catch up to modern communication practices, particularly when it comes to messaging on personal devices and ephemeral apps, historically only pulling evidence from phone calls, email, and internal messaging platforms when conducting investigations.

However, after a series of major fines to financial institutions for things like failing to preserve electronic communications, and illegally using personal messaging to conduct business, the DOJ and FTC jointly announced updated guidance that reinforces parties’ preservation obligations for collaboration tools and ephemeral messaging.

In this in-depth article, Matt discusses how the updates from the DOJ are prompting companies to revisit compliance programs related to the retention and archiving of messaging, how some of the popular solutions are falling short, a framework that enhances decision-making and compliance, and a look ahead to a proactive, agile approach to communications compliance. It’s important information for organizations to know to address all the different forms of communication these days, and how to stay compliant with government regulations.

BTW, Matt alluded to this issue in the 2024 State of the Industry report when he said this in response to a question about furthering the adoption of mobile device discovery: “The DOJ (and other 3-letter agencies) crackdown on third party messaging/communication apps will be one of the largest catalysts to adopt cutting-edge technology to combat the growing need for mobile device discovery and legal hold preservations. These devices historically have been ignored behind the veil of blissful ignorance and cost burden arguments. The DOJs new memo is rapidly changing the legal requirements for remote collection and assessments of smartphones.”

So, the strengthened compliance requirements provide benefits for mobile device discovery! It’s about time!

So, what do you think? Were you aware of the DOJ’s new guidelines on mobile communications compliance? You are now! And please share any comments you might have or if you’d like to know more about a particular topic.

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