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.
Instagram unveils new video service in challenge to YouTube
- Video will be available through Instagram or a new app called IGTV
- Before, Facebook and Instagram have copied Snapchat — another magnet for teens and young adults
SAN FRANCISCO: Facebook’s Instagram service is loosening its restraints on video in an attempt to lure younger viewers away from YouTube when they’re looking for something to watch on their smartphones.
The expansion announced Wednesday, dubbed IGTV, will increase Instagram’s video time limit from one minute to 10 minutes for most users. Accounts with large audiences will be able to go as long as an hour.
Video will be available through Instagram or a new app called IGTV. The video will eventually give Facebook more opportunities to sell advertising.
It’s the latest instance in which Instagram has ripped a page from a rival’s playbook in an effort to preserve its status as a cool place for young people to share and view content. In this case, Instagram is mimicking Google’s YouTube. Before, Facebook and Instagram have copied Snapchat — another magnet for teens and young adults.
Instagram, now nearly 8 years old, is moving further from its roots as a photo-sharing service as it dives headlong into longer-form video.
The initiative comes as parent company Facebook struggles to attract teens, while also dealing with a scandal that exposed its leaky controls for protecting users’ personal information.
Instagram CEO Kevin Systrom told The Associated Press that he hopes IGTV will emerge as a hub of creativity for relative unknowns who turn into Internet sensations with fervent followings among teens and young adults.
That is what’s already happening on YouTube, which has become the world’s most popular video outlet since Google bought it for $1.76 billion nearly 12 years ago. YouTube now boasts 1.8 billion users.
Instagram, which Facebook bought for $1 billion six years ago, now has 1 billion users, up from 800 million nine months ago.
More importantly, 72 percent of US kids ranging from 13 to 17 years old use Instagram, second to YouTube at 85 percent, according to the Pew Research Center. Only 51 percent of people in that group now use Facebook, down from 71 percent from a similar Pew survey in 2014-15.
That trend appears to be one of the reasons that Facebook is “hedging its bets” by opening Instagram to the longer-form videos typically found on YouTube, said analyst Paul Verna of the research firm eMarketer.
Besides giving Instagram another potential drawing card, longer clips are more conducive for video ads lasting from 30 seconds to one minute. Instagram doesn’t currently allow video ads, but Systrom said it eventually will. When the ads come, Instagram intends to share revenue with the videos’ creators — just as YouTube already does.
“We want to make sure they make a living because that is the only way it works in the long run,” Systrom said.
The ads also will help Facebook sustain its revenue growth. Total spending on online video ads in the US is expected to rise from nearly $18 billion this year to $27 billion in 2021, according to eMarketer.
Lele Pons, a YouTube sensation who also has amassed 25 million followers on Instagram, plans to launch a new cooking show on IGTV in hopes of increasing her audience and eventually generating more revenue. “It’s like Coca-Cola and Pepsi,” she said. “You will never know what you like better unless you try both.”
IGTV’s programming format will consist exclusively of vertical video designed to fill the entire screen of smartphones — the devices that are emerging as the main way younger people watch video. By contrast, most YouTube videos fill only a portion of the screen unless the phone is tilted horizontally.
Snapchat began featuring vertical video before Instagram, another example of its penchant for copying rivals.
But Systrom sees it differently. “This is acknowledging vertical video is the future and we want the future to come more quickly, so we built IGTV.”