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Business Crimes BulletinFeaturesRegulationTechnology Media and TelecomWhite Collar Crime

Regulators Reaching Deep In Their Toolbox to Prosecute Users of Encrypted Messages

By Andrey Spektor and Laura S. Perlov
February 01, 2023

If you use Whatsapp or similar platforms for work-related communications, then you've probably heard that regulators are putting an end to that practice. Ephemeral and encrypted messaging, they have noted, evades monitoring and prevents retention. If companies can't turn over incriminating communications to law enforcement, then prosecutions against individuals will suffer — an unacceptable outcome to prosecutors bent on making cases against individuals for white collar offenses. And while that's true of felony prosecutions, a seldom used doctrine allows prosecutors to charge executives with misdemeanor offenses just for being in the position of power when others commit the misconduct. Rather than take a wait-and-see approach, companies and their leaders would do well to prepare for prosecutors to reach deep into their toolbox.

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All Your Communications Belong to Us

Few people doubt that the Department of Justice (DOJ) is serious about going after white-collar employees. Kenneth Polite, the Chief of the Criminal Division of the DOJ, for example, ominously has observed that "the deterrence we get from a potential conviction of an individual, particularly a senior executive — there's nothing like it." And there has been nothing like it.

Any prosecutor who has built successful cases against white-collar professionals knows that the best evidence lies in communications — emails, text messages, and chats that people often (mistakenly) think will remain private. Knowledge and intent are almost always the most difficult elements to establish beyond a reasonable doubt, especially when fraud is alleged. Sure, victims lost money, but did the defendant really mean to defraud them? This is when prosecutors like to waive around conversations that defendants had around the time of the crime.

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