Partner Brian Burke (New York/Shanghai-Litigation) was featured in a recent episode of the FCPA Compliance Report, a bi-weekly podcast on compliance and ethics issues, discussing the impact of the U.S. Department of Justice’s Corporate Enforcement Policy on the appropriate retention of business records for companies.

Under the policy, which was announced in November 2017, the Justice Department expects companies to prohibit employees from using software that does not “appropriately retain business records or communications,” which would include commonly used instant messaging apps such as WhatsApp, Facebook Messenger and WeChat.  

Brian noted that instant messaging has become the primary form of communication for many employees, and a blanket prohibition therefore would be unrealistic.  He suggests companies take steps to understand how employees are using these apps and incorporate policies and controls for appropriate use and retention.  “Instant messaging is a powerful tool that can greatly benefit an organization,” said Brian.  “Just as with other communication platforms, however, it is important to implement controls for proper usage, especially now that the Justice Department has put companies on notice.” 

Specifically, Brian recommends that companies take the following practical measures:

• Update compliance policies to address reasonable use of instant messaging apps and retention requirements
• Update training programs so employees are educated on appropriate use and retention
• Explore using enterprise versions of messaging apps so that correspondence travels over the company’s network
• Implement retention protocols that require employees in certain roles to back-up messaging correspondence periodically
• Add appropriate use and retention to the scope of internal audits to monitor compliance and mitigate potential risks

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