“Ephemeral” What? Defining Ephemeral Data and Messaging

With consumers and organizations adopting “ephemeral” messaging apps with increasing frequency, there is a need to consider the implications of this technology to a company’s retention and discovery obligations. But first, it is necessary to define what exactly we mean by “ephemeral” when it comes to data in general, and messaging apps in particular.

What is “Ephemeral” Data and Messaging?

One challenge to consider when discussing ephemeral messaging and data is the lack of commonly accepted definitions. The dictionary definitions of “ephemeral” are fairly uniform, including:

Ephemeral (əˈfem(ə)rəl).  Adjective.

1. Lasting for a very short time.
2. Lasting for only a short time.
3. Lasting one day only.

The eDiscovery community has been dealing with the discovery of ephemeral data for more than a decade, including the discovery of data from various types of Random-Access Memory (“RAM”) chips contained in computers, printers, and other electronic devices.  RAM is quintessential “ephemeral” data: the digital equivalent of human short-term memory.  While the data is stored in electronic form, RAM is engineered with the specific intent to serve as short-term retention for tasks that must be maintained in some form of memory, and then transferred to long-term memory at the end of a task, overwritten to make way for other short term data, or cleared completely when disconnected from a power source.[1]

The challenge now is that technology has graduated from rudimentary ephemeral data to advanced ephemeral messaging.  What does the term “ephemeral messaging” really mean?

The dictionary definitions of “messaging” include:

Messaging (mes uh jiNG).  Noun.

1. A system or process of transmitting messages, especially electronically, by computer, telephone, television cable, etc.
2. The sending and processing of email and similar electronic communications.
3. The sending of written or spoken messages using a computer or another electronic device such as a cellphone.

When we speak of “messaging” technology, we are referencing, generally, one or more forms of text-based communication, such as SMS or other text messaging (iMessage, Android Message), cross-platform mobile device messaging (WhatsApp, WeChat), or cloud-based, multi-device messaging services (AOL Chat, Skype, Microsoft Teams).

When people discuss “ephemeral messaging” they are often referring, generically, to desktop and mobile applications that are designed with the specific intent of limiting the lifecycle of messages in a platform.  This does not mean that there are natural technical restrictions on the ability of these apps to retain information for any measurable period of time, but rather a functionality decision has been made in the engineering design process.

A Proposed Definition of “Ephemeral Messaging”

As the industry continues to address the legal discovery and regulatory retention issues relating to ephemeral messaging, I posit the following working definition:

Ephemeral Messaging (əˈfem(ə)rəl mesijiNG).  Noun.

A subset of messaging applications and platforms that include a specific, core functional design component providing for the permanent erasure of messages through the use of:

1. a programmatic self-destruction function,
2. triggered by a specific event (e.g., opening or closing of a message), and
3. measured by a digital timer for a pre-defined time frame (e.g., days, minutes, or seconds).

While no definition can be perfect, by way of reference, the foregoing is intended to encompass the expanding number of messaging apps and platforms that (presently) include, but are not limited to: Confidence, CoverMe, Dust, Hash, Signal, Snapchat, Telegram, and Viper.

At the same time, this definition is intended to exclude more standard messaging apps and platforms, where the permanent erasure of information is not a core functional component. This definition would thus eliminate from the “ephemeral” realm apps such as iMessage, Facebook Messenger, Google Chat, Skype for Business, Teams, Slack, and other standard SMS platforms.

Conclusion

While “ephemeral” is the buzzword of the day, it is important to understand that not every messaging app is designed for messages to “last for only a short time.”  But that still leaves open the question as to whether there are any legal implications in distinguishing ephemeral from non-ephemeral messaging. I will begin to examine this question in my next post.

[1] Wikipedia provides a decent description of Random-Access Memory, available at https://en.wikipedia.org/wiki/Random-access_memory.