Years before Edward Snowden obliterated digital innocence, showed us what the “Five Eyes” are really up to, and pulled stakes for the unlikely safe harbour of Moscow’s airport transit zone, Viktor Mayer-Schönberger released his 2009 book Delete: The Virtue of Forgetting in the Digital Age. In it he urged caution for the “Digital Panopticon”, and warned against the growing trend towards mass surveillance. The Internet, as we now know, never forgets. He made the case for why it should.
Throughout human history, forgetting has been the norm and remembering the exception. Technology, as Mayer-Schönberger, a professor at Oxford, points out, merely upended the natural order. With Google, Facebook, NSA and all the other agents of the domestic espionage age, “forgetting has become the exception, and remembering the default.”
For a simple reminder of how inconvenient this can be, cast your thoughts back to 2007 and Andrew Feldmar, the respected psychotherapist who was barred from entering the US on the grounds of “moral turpitude”. An intrepid border guard decided to Google him and found an academic journal wherein he discussed therapeutic applications for LSD, and some experiences from long-ago personal use of the drug. Of course, Feldmar made those statements and did so publicly at some point, so perhaps a more recent reminder will resonate: the rather appalling disclosure of “non-conviction information” by some police agencies as illuminated in this report of the CCLA.
The traces of our digital activities accrete with greater persistency than ought to be. They make possible a most “pernicious version” of the digital panopticon, and ensure what Foucault termed “a state of conscious and permanent visibility that assures the automatic functioning of power”—and then some.
We no longer govern ourselves merely out of fear of being observed in the moment—we operate under a legitimate assumption that anything we do will be captured, potentially for later scrutiny. We self-regulate our behaviour not only out of fear of present consequences, but in fear of future consequences for past actions. Even those actions we have forgotten about. This is a virtuous cycle of utilitarian conformity. Everything in our past adds steel to an ever-growing blade that hangs like the sword of Damocles from the horse’s hair. This is your digital legacy.
“As much of what we say and do is stored and accessible through digital memory, our words and deeds may be judged not only by our present peers, but also by all our future ones,” says Mayer-Schönberger. His solution to this problem is law reform and other controls to enforce termination of Internet-stored data after a set period of time.
Time for a “Forget me now”
Against claustrophobic surveillance and incessant bids for personal information by big data interests, this notion of a forced memory purge has gained fresh appeal. A report from the Associated Press-NORC Center for Public Affairs Research in 2013 revealed that the public opinion pendulum is coming back from 9/11. A majority of Americans now oppose mass surveillance. Mayer-Schönberger’s idea for data expiration has become official policy within the European Union (according to his Oxford bio page), and not surprisingly, investors are now interested in what this means.
Are we shifting from the age of over-sharing to the age of ephemera?
Facebook uses a feature-rich platform with apps and traps carefully baited to get you to reveal consumer interests which improve ad-targeting. By contrast, a new breed of “ephemeral” social apps operates on an entirely different set of objectives.
Wickr is one example of this ephemeral anti-social un-network, and a specimen with some interesting implications for the practice of law. It is a free mobile application that lets you send messages with photos and other attachments on Android and iOS devices. It’s a bit like Viber, Snapchat, or the popular WhatsApp, save for a few key differences:
- everything sent or received through Wickr passes with “military-grade encryption”,
- all content will self-destruct according to a timer set by the sender (1 second to 6 days max),
- no information is stored on Wickr’s servers (sorry Norwich Pharmacal), and
- the Wickr application does its absolute best to shred digital remnants, thwart data capture, and stymie forensic retrieval.
It would be pure speculation on my part to determine how the app will make money—although they seem to license the platform for specific applications in gaming and are developing an enterprise product. Wickr clearly has investors paying attention, however, since it announced $30 million in Series B funding last week, following a $9 million Series A back in March this year.
Interestingly, at least one source indicates Wickr’s “early adopters” include lawyers (along with royals, financiers, teens, reporters and some diverse others). I have used the app, and while it is rather simple to use, I can only picture a few cases where the encryption and self-destruction of data would be that important. Mobile communications with staff outside the office who may or may not properly secure their phones is one instance. In many cases, however, you simply want encryption but along with a record of client communications, and there are other encryption apps for that such as Threema, Telegram or Cryptocat which do not necessitate destruction. Otherwise, well, you could always pick up the telephone.
From the Panopticon to the crypto-ephemeral woodshed of forgotten things
One blog post from Robert J. Ambrogi picked up on the potential to use Wickr as an alternative to email, due to its secure nature. In criminal practice, I suspect there could be wider application, and indeed in any situation where the lawyer is concerned about another party (intemperate ex-spouses perhaps, or an inconsiderate government) intercepting communications.
But Wickr and similar services raise some challenging questions too, and it will be interesting to see what direction Canadian courts take when it comes to spoliation concerns. Specifically will a Canadian court take an adverse inference against a party who has deliberately used an ephemeral messaging platform to discuss matters that are at issue in litigation? What about when an apparent policy is in place to avoid “the costs of eDiscovery and litigation” by using a communication platform that creates no electronically stored information? Do insider tips to a cousin’s stock broker or candid quips with management team about an employee (“What?! Another pregnancy with this one!”) seem more or less likely than an innocent explanation of why a defendant uses a secret whisper machine? I certainly don’t know.
Wickr has yet to release their enterprise version, but there is another service similar in core respects to what Wickr offers called Vaporstream. It bills itself as the missing supplement to email, IM and SMS. A fourth way, if you will.
A recent article by John Browning, entitled “Burn after Reading: Preservation and Spoliation of Evidence in the Age of Facebook” says that Vaporstream’s cost is around $25,000 per month for up to 50 employees. For this, the tool offers secure, and controlled messaging. The service gives a somewhat oblique nod to compliance on its website: “Vaporstream has an E-governance module that automatically archives Vaporstream messages from the sending organization as transitory messages decreasing e-discovery risks and costs, archiving costs and increasing regulatory compliance.”
It may be that Vaporstream’s talk around spoliation is evolving, since I could not find within their current FAQs what was referenced by the Browning article, and what the Wayback Machine shows is a rather bold claim that preservation obligations and litigation holds do not apply. The Vaporstream website at one point read that “[u]sing Vaporstream would be no different than talking face-to-face over lunch or at the water cooler.”
You might call this the age of the crypto-ephemeral social network—an age where the Internet heeds the old Irish proverb, “May you never forget what is worth remembering, nor ever remember what is best forgotten.”
I’d love to know who among the Canadian legal profession is following this. Who are the lawyers using this or similar apps? These forensic folks seem to be making an attempt to assess it. Are there forensic experts among SLAW readers who can confirm the resilience of Wickr? You can ping me on my new crypto-ephemeral anti-social un-profile on Wickr @nrusse to continue this dialogue… outside the Panopticon.