Uber’s use of encrypted messaging may set legal precedents
Uber’s use of encrypted messaging may set legal precedents
The revelations Tuesday and Wednesday about the extensive use of Wickr inside Uber upended the high-stakes legal showdown with Alphabet’s Waymo unit, which accuses the ride-hailing firm of stealing its self-driving car secrets.
Apps such as Wickr, Signal, Telegram, Confide and Snapchat offer security and anonymity, with features including passcodes to open messages and automatic deletion of all copies of a message after as little as a few seconds.
There is nothing inherently unlawful about instructing employees to use disappearing messaging apps, said Timothy Heaphy, a lawyer at Hunton & Williams and a former US Attorney in Virginia.
However, companies have an obligation to preserve records that may be reasonably seen as relevant to litigation or that fall under data retention rules set by industry regulators. In Uber’s situation, chat logs that could help get to the bottom of the trade secrets case are now inaccessible. Uber also faces a criminal investigation over the alleged theft.
“It’s a knotty question for courts and lawyers on when the obligation arises” to preserve records, said Julia Brickell, general counsel at the legal discovery firm H5. But “if someone uses a communication device to specifically hide information from litigation because you knew it would result in litigation, that would be foul from the start.”
Richard Jacobs, a security analyst whom Uber fired in April and now consults for the company, testified Tuesday that up to dozens of employees were trained to used ephemeral messaging systems, including Wickr, to communicate so that their conversations would be clandestine and could not surface in any “anticipated litigation.”
Two officials still at Uber testified Wednesday that multiple teams used Wickr. Among the users, they said, was Anthony Levandowski, a one-time leader of Waymo’s autonomous vehicle efforts who the company alleges brought trade secrets to Uber.
It is unclear when Uber began using Wickr, but the company said that in October of last year it began paying for a business version that gave it the ability to preserve messages for as long as a year instead of a maximum of six days.
While the contents of an individual user’s Wickr account would be impossible to access without the account-holder’s permission, the business version gives the company the ability see whatever information has not been automatically erased.
In the middle of the contentious court hearing Tuesday, Uber Chief Executive Dara Khosrowshahi tweeted: “True that Wickr, Telegram were used often at Uber when I came in. As of Sept 27th I directed my teams NOT to use such Apps when discussing Uber-related business.”
US District Judge William Alsup opened the pre-trial hearing by admonishing attorneys that counsel in future cases can be “found in malpractice” if they do not turn over evidence from specialized communications tools.
An app such as Wickr “could be a way for Levandowski to communicate ‘By the way, how did we do that back at Waymo?’ and all that vanishes in 30 seconds,” Alsup said. “To me it’s plausible that it happened. And the evidence is gone now. Because it was an intentionally set up system to not leave a paper trail.”
Federal civil court guidelines enable judges to tell jurors that they can presume that information covered up by a litigant and now missing would have been negative for that party, Brickell said.
Such a declaration could hurt Uber, as its primary defense has been that Waymo has turned up no concrete evidence of the trade-secret theft. Now, Waymo can claim that such evidence was simply deleted.
“That they were so concerned about covering things up meant that they could have known what they were doing was a crime,” said Nick Akerman, a lawyer at Dorsey & Whitney and a former federal prosecutor in Manhattan. “To me, that’s very powerful evidence.”
Andy Wilson, chief executive of forensics software maker Logikcull, said it is already common for companies to search for usage of encrypted apps or deleted messages when conducting internal investigations.
He said his company’s program is used by Salesforce.com and other businesses to scan emails and chat messages. Emails showing a user signed up for a service such as Signal or Telegram are held against them in internal investigations, he said, as are records showing a text was deleted.
“It’s a huge win for (customers) because it shows ill-intent” on the part of the subject of the investigation, Wilson said.
SpaceX’s first private passenger is Japanese fashion magnate Maezawa
- SpaceX in February transfixed a global audience with the successful test launch of its Falcon Heavy, the most powerful operational rocket in the world
- SpaceX has already upended the space industry with its relatively low-cost reusable Falcon 9 rockets
HAWTHORNE, California: SpaceX, Elon Musk’s space transportation company, on Monday named its first private passenger as Japanese businessman Yusaku Maezawa, the founder and chief executive of online fashion retailer Zozo.
A former drummer in a punk band, billionaire Maezawa will will take a trip around the moon aboard its forthcoming Big Falcon Rocket spaceship, taking the race to commercialize space travel to new heights.
The first passenger to travel to the moon since the United States’ Apollo missions ended in 1972, Maezawa’s identity was revealed at an event Monday evening at the company’s headquarters and rocket factory in the Los Angeles suburb of Hawthorne.
In moves typical of his publicity-seeking style, Musk, who is also the billionaire chief executive of electric car maker Tesla Inc, had previously teased a few tantalizing details about the trip and the passenger’s identity, but left major questions unanswered.
On Thursday, Musk tweeted a picture of a Japanese flag. He followed that up on Sunday with tweets showing new artist renderings of the Big Falcon Rocket, or BFR, the super heavy-lift launch vehicle that Musk promises will shuttle the passenger to the moon and eventually fly humans and cargo to Mars, using the hashtag #OccupyMars.
While the BFR has not been built yet, Musk has said he wants the rocket to be ready for an unpiloted trip to Mars in 2022, with a crewed flight in 2024, though his ambitious production targets have been known to slip.
SpaceX plans a lunar orbit mission. It was not clear how much Maezawa paid for the trip.
Maezawa made his fortune by founding the wildly popular shopping site Zozotown. His company Zozo, officially called Start Today Co. Ltd, also offers a made-to-measure service using a polka dot bodysuit, the Zozosuit..
With SpaceX, Amazon.com founder Jeff Bezos’ Blue Origin and entrepreneur Richard Branson’s Virgin Galactic battling it out to launch private-sector spacecraft, the SpaceX passenger will join a growing list of celebrities and the ultra-rich who have secured seats on flights offered on the under-development vessels.
Those who have signed up to fly on Virgin Galactic sub-orbital missions include actor Leonardo DiCaprio and pop star Justin Bieber. A 90-minute flight costs $250,000.
Short sightseeing trips to space aboard Blue Origin’s New Shepard rocket are likely to cost around $200,000 to $300,000, at least to start, Reuters reported in July.
SpaceX has already upended the space industry with its relatively low-cost reusable Falcon 9 rockets. The company has completed more than 50 successful Falcon launches and snagged billions of dollars’ worth of contracts, including deals with NASA and the US Department of Defense.
SpaceX in February transfixed a global audience with the successful test launch of its Falcon Heavy, the most powerful operational rocket in the world.
SpaceX previously announced plans to eventually use Falcon Heavy to launch paying space tourists on a trip around the moon, but Musk said in February he was inclined to reserve that mission for the BFR.