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'Vanish'ing Data Might Not Be the Best Policy

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Wednesday, IT Business Edge blogger Ralph DeFrangesco mentioned a research project he has come across in which participants created a system by which electronic documents (e-mails, blog posts, chat logs and the like) will self-destruct or disappear after a certain amount of time. I have never heard of anything like it, and I was a bit skeptical at first, but Vanish, as it's called, appears to be a real project.

 

Not that Ralph would write about something that isn't real. I'm just a skeptic. (For instance, nearly every e-mail that comes through my box results in a trip to snopes.com.) He explained how the system works this way:

The product works by encrypting the data using a key that the user does not even know, and then divides the key into many parts and distributes them over a peer-to-peer network. As new systems join the network and older systems leave the network, the key is eventually lost.

Aside from the Web site set up by its creators, I have found very little about Vanish online. The few pieces I have found have been scientific and technical in nature, and very little has been said about the legal implications of such a system. All the creators say on the Web site is that the legal implications are unclear. Frankly, "unclear" is not the word I would use -- especially in a corporate or government environment. In those situations, this whole idea "just doesn't pass the smell test," as one of my law professors used to say.

 

First, I've written for days on end about e-discovery requirements and how they don't leave much room for error. In fact, Federal Rules for Civil Procedure addressing e-discovery allow the judge to decide against a party, fine the party or, at the very least, issue an adverse inference to the jury if evidence is destroyed or inaccessible. Tech News World writer Peter Vogel explains it this way:

When evidence has been destroyed (spoliated), a judge or arbitration panel can grant a verdict against the destroying party, fine the party, or issue an adverse inference to the jury. An adverse inference directs the jury to assume that the reason the party destroyed the evidence was that it was adverse to its claims in the lawsuit.

How much worse does it look to a jury if the destroying party uses a system like Vanish?

 

Second, as is mentioned on the Vanish site, government entities and their employees must preserve most everything done in the course of "governing" for the public record. Remember the fuss about the missing White House e-mails? The chatter about a presidential smartphone? That someone in such a position would consider using Vanish suggests that they have something to hide, doesn't it?

 

Granted, I don't practice technology law and I don't specialize in corporate litigation. I'll leave the final word to people who do. (Keep an eye out for interviews and posts to that end.)

 

In the meantime, all I can say is something smells funny.

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