> Yes, but there's presumably a difference between deleting evidence vs. not having it in the first place.

In the article it seems Google's "history off" feature isn't really history-off so much as it simply auto-deletes after 24h. If the chats were never logged, would they have avoided this?

Also how far does the law go regarding deletion - I mean if a message was stored in memory and then released/garbage collected does that still count as "deleting evidence"? Because if so, then virtually any means of electronic communication might be counted as "deleting evidence". For example a voip call audio buffer that gets deleted.

(Just thinking out loud, not that I would ever want to circumvent the law)

Not a lawyer, but my amateur guess is the answer to your first question would be yes, and the answer to your second question would be no, because of the common-sense understanding of how computer storage works and what it means to delete something. There's no need to have an information-theoretic definition of "destruction" here.

Relevant law cited elsewhere in the thread: "(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court ..."

The key word is "reasonable", which is what the court must decide happened here. OTOH deliberately enabling "history off" doesn't sound like a reasonable steps to preserve records under legal hold. Having said that, I wonder if it also means voip/video calls must be recorded, especially if the feature is available in whatever app they use. Further, even if they use a purpose built "off the record" app, deliberately choosing to use such an app could be argued as failure to reasonably preserve records, if a regular history-preserving app is available. So I think the answer to my first question could be a no.

The key word to me is "stored". The common-sense definition of storage refers to non-volatile storage, not RAM or data in transit.

Phone calls and video chat are real time communication. They are expected to be ephemeral. Asynchronous text chat is not.

Should have used IRC!

Ytalk works without a server so even better.

> Yes, but there's presumably a difference between deleting evidence vs. not having it in the first place.

Hmm, so what if the chat said “let’s continue this discussion in the conference room”?

Presumably that would be legally OK, as long as that message itself wasn't deleted.

Thanks. The law is kind of silly. A chat system that doesn't store history is functionally equivalent to an unrecorded call, but I'm guessing they would not consider an unrecorded call destruction of evidence.

It does record "history" - if it didn't, the recipient would see it appear and then immediately vanish in the next refresh of the screen, which is not the case. The thing is, it only keeps the history for a short period of time (hours/days). That's not the same thing as an unrecorded call, which isn't recorded for any period at all.

That is understood. However the medium begets a conversation around how most communication isn't recorded anyways, in this example if it were a phone call.

I don't think I understand what you're trying to say. Could you please rephrase/clarify?

Most communication isn’t recorded? I suspect that’s not accurate.

Mail, messages, chat, ticketing systems…phone calls are definitely an outlier in my world. Even face to face is rare.

But it’s not, which is the point. It’s a chat with a recorded history, whose history gets deleted after some time.

If you have two internal phone systems, one of which logs calls and is the default, the legal system would look on moving to the other unrecorded system in the middle of a call with the same kindness. Intent matters in law and the intent was to evade evidence rules.

> the legal system would look on moving to the other unrecorded system in the middle of a call with the same kindness.

I don’t know about that. Not producing evidence and destroying evidence are very different actions, even though the intent (of not leaving evidence) is similar.

In the US, moving conversations from a recorded to an unrecorded medium would likely be covered under the 5th. Having conversations on a recorded medium then destroying the record, not so much.

No, the chat system recorded history for 24 hours and then deleted it. Google had a legal obligation to proactively find and turn off all the automatic deletion system that could delete potentially relevant records. That's just how the law works, every big corp knows how to do it.