Ephemeral Messaging

How to Comply with the Revised Ephemeral-Messaging Provision in the DOJ’s Corporate Enforcement Policy

By Charles E. Duross, James M. Koukios & Lauren Navarro on April 5, 2019

Posted in Disappearing Content, DOJ, Ephemeral Messaging, FCPA

In early March 2019, the Department of Justice (DOJ) revised its Foreign Corrupt Practices Act (FCPA) Corporate Enforcement Policy (the Policy). First announced in November 2017, the Policy is designed to encourage companies to self-report FCPA violations and to cooperate with the DOJ’s FCPA investigations. The Policy and its recent revisions were incorporated into the United States Attorneys’ Manual (USAM), now referred to as the Justice Manual (JM), which is the internal DOJ document that sets forth policies and guidance for federal prosecutors.

One of the most notable aspects of the original Policy was its requirement that companies seeking to obtain remediation credit prohibit employees from using ephemeral messaging systems unless appropriate retention mechanisms were put in place. According to the original Policy, a company would receive full credit for remediation only “if [it] prohibit[ed] employees from using software that generates but does not appropriately retain business records or communications.”…
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