Recording Telephone Calls and Instant Messages

Recorded Video Calls

Why does spoliation law punish pre-mature destruction of email records, while not also requiring that telephone conversations be recorded and preserved?  That question came to me from a student taking the 5-day SANS course I teach (The Law of Data Security and Investigations).  Following was my reply to him . . .

My reply ties into the philosophy I express in day 2 of the course, on records management.  My answer speaks in broad generalities.

US and Canadian law has evolved in a way that is not necessarily optimal, given recent developments in technology.

Our law takes the attitude that a "record" is really something important.   After a record exists, our law tilts toward wanting the record to stay around, especially if the record holder has reason to believe the record might be needed in a future lawsuit or official investigation.  Thus, our law punishes unwarranted destruction of records.

 The same holds true in politics.  When politicians investigate a scandal, they (and the media) howl if "records were destroyed." Here is a Canadian example.  The destruction of records sounds like a "cover up."

Email always creates a written record automatically.  Once that written record exists, the law and the politicians tend to think it is like a written letter, a "precious record" that deserves some measure of preservation.

Contrast traditional voice conversations (telephone or face-to-face).  They do not automatically create a record of the content of what people say.  So there is no "precious record" to retain and to protect from loss.

Furthermore, we have a history of believing that if a record is in fact created of a voice conversation (e.g. tape recording), then privacy is implicated.  So we believe that if you are going to record a phone call, you must first get the consent of the other party.

Notice we don't ask for consent to record email, because it is naturally assumed that email will be recorded.

Today, technology is changing.   The difference between email and a voice telephone call is blurring.  Some instant message systems now automatically record voice and video the same way that they record text.  The law has not fully considered this new development.   As things like IM become more common, I think we will see confusion in the law about whether instant voice and video records should be retained like email.


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