Texas Gulf Selfie? The Changing (and Disappearing) Face of Insider Trading

by Akin Gump Strauss Hauer & Feld LLP
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In recent weeks, U.S Department of Justice investigations into currency traders have drawn renewed attention to the permanence of even seemingly fleeting communications.  In that investigation, the DOJ is looking at, among other things, Bloomberg chat room transcripts of members of the so-called “Cartel,” a group of currency traders.  As a result of such investigations, the days may be numbered for widespread use of Bloomberg chatrooms: the Wall Street Journal reported recently that several large banks are already considering restricting chatroom access.  But while regulators and companies have their attention turned to chatrooms, new methods of communication continue to emerge, presenting new challenges for corporate compliance. 

Take Snapchat, for instance.  For the uninitiated, Snapchat is a smartphone app that allows people to send each other “disappearing” pictures.  The sender can choose how long the recipient will be able to view the picture—anywhere from one to ten seconds—before it disappears from the recipient’s phone.  Users can also send single-view videos up to 10 seconds long that erase as the recipient plays them.  And while Snapchat has its legal uses from the mundane to the prurient, the possibility of its misuse in the securities context is worth attention.

In June 2013, New York Magazine posted a blog article entitled “Wall Street Is Obsessed With Snapchat.”  The article largely ignored discussion of the potential use of Snapchat for insider trading, focusing instead on the app’s usefulness in avoiding the circulation of compromising pictures of social media-obsessed young bankers.  On July 17, however, CNBC’s Jim Cramer brought the potential of Snapchat insider trading to light when he asked the U.S. Attorney for the Southern District of New York, Preet Bharara, about precisely this possibility.  Bharara hadn’t heard of Snapchat.  His response was that, “to the extent that people can figure out ways to communicate, either by IM or Snapchat or some other method, law enforcement needs to think of that . . . but nobody should feel safe because they're using a particular method of communication.”

Bharara’s lack of knowledge of the two-year-old app is not surprising—keeping abreast of and control over technological channels is a never-ending game of regulatory whack-a-mole.  But it does underscore the importance of keeping current on what apps are popular and, crucially, how those apps work, in order to ensure that legal practice and compliance efforts evolve to reflect the ever-changing technological landscape.

Snapchat provides a salient example of why understanding how new apps work is as essential as knowing the apps exist in the first place.  As of October 2013, Snapchat has asserted that, while unopened pictures are retained on the servers (and therefore available for subpoena), once a picture is opened, it disappears not only from the phone, but also from Snapchat’s servers.  One can easily imagine a host of potential risks: sharing of material nonpublic information; dissemination of trade secrets; employee sexual harassment—all with virtually no evidence remaining. 

From a litigation perspective, the disappearance from the servers also raises the problems of data retention and spoliation.  As The E-Discovery Blog asks:  “Do parties have a duty to preserve snaps when they have little to no control over the ‘deletion’ of the data?”  And could the disappearance of data give rise to adverse inferences due to spoliation? 

According to Snapchat’s Law Enforcement Guide, the company does retain some user information, which may be useful in terms of compliance, and is something litigators should be aware of when advising clients:  Snapchat username, email address, phone number, Facebook account (if synced), username log of the last 200 snaps sent and received, Snapchat account creation date.  This data is, however, only retained for active users—the company cannot recover even this basic information from a deleted account. 

Given that Snapchat recently turned down a $3 billion dollar offer from Facebook, chances are that the company won’t be doing a disappearing act anytime soon.  And in turn, legal issues arising from or involving the unique nature of Snapchat’s functionality will doubtlessly emerge.  Knowing that new apps like Snapchat exist and knowing how they work are crucial steps in decreasing the likelihood that your client will be in the unfortunate position of being that first test case.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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