Photo by: John Disney/ALM.
The dramatic Waymo v. Uber trade secrets saga may have ended last week, but it’s left the legal industry with questions about more than just self-driving cars—it’s drawn attention to ephemeral messaging.
Ephemeral messages, communications that self-destruct after a given amount of time, came up a few times during the case. Uber faced criticism over allegations its employees used ephemeral messaging, particularly a messaging app made by San Francisco-based Wickr Inc., to keep sensitive information off company servers. Waymo acknowledged that its own employees use Google messaging systems, which have ephemeral capabilities, but only for ordinary business communications.
Corporate Counsel recently spoke with two of the lawyers behind Wickr, the company’s general counsel and associate founder Jennifer DeTrani and outside counsel Jonathan Meyer, who is a partner at Sheppard, Mullin, Richter & Hampton and former deputy general counsel at the U.S. Department of Homeland Security.
They gave the lowdown on legal issues around ephemeral messaging, how they explain its perks to legal teams and what it’s like being name-dropped in court by Uber and Waymo. The conversation has been edited for clarity and length.
Corporate Counsel: What are the most important tasks you have to accomplish as lawyers in the ephemeral messaging space?
Jennifer DeTrani: I think responsibly educating other lawyers about how to bring ephemeral into a client’s workplace is one of the most important tasks that I have. As a lawyer you have to understand the facts and circumstances before you can advise. From where I am, some of the advice is more general.
Jonathan Meyer: The key issues today are, how the court system, the legal system and the government are going to deal with these emerging technologies, because [these structures] have been built around older technologies and ways of communicating and they are now struggling [with] how to think about these properties. Those issues directly impact the issues Jennifer is talking about, helping companies do it right. It’s very much cutting-edge in tech and the law and it’s really important to get it right.
What was the effect of Wickr’s mention in Waymo v. Uber on the perception of ephemeral messaging?
JD: I think the resolution of Waymo vs. Uber was favorable. It’s been great to see ephemeral messaging discussed on a global level because it’s something we rant about. It was really interesting and good to see a jury and a judge and the public at large understand that both [parties in the case] were employing ephemeral messaging.
From an ephemeral messaging perspective, it was a very positive result. If anything, Uber v. Waymo sort of highlights the need for that education because it’s easy to see something through a lens that’s too broad or narrow.
Have more lawyers reached out to you about Wickr since the company’s mention in the case?
JD: Yes. It’s been fun for me because I’ve been reconnecting with friends from law school, because they know they have someone they can frankly ask about this for their companies. I have seen a lot of lawyers come to me in the aftermath, in the successful conclusion of Uber v. Waymo to say: “Is this something we could do? Here’s what I’m trying to fix, is this a good solution?” And that’s been really cool.
Jennifer DeTrani. Courtesy of Wickr.
How did you learn enough about ephemeral messaging to feel comfortable explaining it to other companies’ lawyers? It’s a new space, and one that isn’t always clear.
JD: My lifeline has been this amazing community of legal experts. It’s people from the government, privacy experts and others bringing their knowledge into the equation and then trying to figure out [how] that equation computes. We’re constantly playing with that equation and making sure we’re checking our facts and not getting it wrong.
What does this in-house team at Wickr look like? How often do you use outside counsel?
JD: We have a very small legal department—less than five people—and a lot of our legal department efforts are focused on protecting our own IP. We address so much different subject matter throughout the course of the day, whether it’s IP, privacy law, transactions, technology transfer. We’ve got various outside counsel depending on what subject matter expertise is needed at the time, and we’re also constantly trying to figure out who to add on to that bench. As a startup company we’re pretty DIY, so we all roll up our sleeves and have fun with it. We’ve had legal interns who contributed great help over the years, but ultimately it’s inside counsel effort with a strong outside counsel bench and advisers at the top of their field who are helping us get through every day.
JM: I think Jennifer is taking the right approach here. It’s one thing to get a smart lawyer or two, but it’s another to get a multiplicity of perspectives, because the world has that multiplicity. I’m someone who spent most of my career in government and law enforcement and homeland security, but she’s talking just as much to privacy advocates and outside security-type people. And you really need to be thinking about all those perspectives.
Do you handle legal questions from companies and organizations that are using Wickr?
JD: Working with our sales team is one of the most fun, dynamic parts of my job. You never know what [the company's] use case is or if there are specific concerns or where they’ve been impacted in the past. It’s almost like being a doctor. Once you get in and understand what’s going on, you can explain how Wickr’s tools can address those concerns.
We have different iterations of our professional products, depending on what companies’ retention or regulations might be. We want to make sure we understand [those needs], to give them the right guidance. Getting the customer to a place where they understand what [the tool] will do, how effective it will be and what it will solve—that is a huge part of my role at Wickr, and one of the most rewarding parts.
What do other legal teams usually ask you?
JD: One of the biggest questions is, “Can I use this?” and my answer is, “Yes, and you should.” There are use cases within use cases. You’ve got the need to protect communications around IP. You’ve got a need to eliminate phishing from the finance department—even to communicate overseas to the board of directors. A lot of people don’t understand that there is no requirement to hold on to everything that you’ve ever created over time, so this concept of data minimization is one that we try to push hard even if someone’s going to walk away and not use our product. Our strongest tool is education.
In the past, we’ve seen startups entering new spaces push for better regulation and work with lawmakers. Will Wickr do the same?
JD: We are talking to a lot of people in Washington, D.C. A lot of folks in Washington use the product. I think we will see some legislation that will set forth a lot of the guidelines around the use of the tool in the next year.
JM: The Hill is beginning to focus on [ephemeral messaging] and will likely continue to focus on it, but the end game here is that the legal world learns how to think about it conceptually. It’s come up in court cases and that’s the way it usually is. There will be some cases and then some principles will develop. We’ll start to conceive of communication in a more complex way. Less of an “either or” approach and more of a spectrum approach, a more sophisticated approach because communication itself has become more sophisticated.
What is Wickr’s role in stopping users from abusing the platform?
JD: I think Wickr’s responsibility is to set forth its terms of service so that end users are held responsible pursuant to a set of rules. We try not to get too specific with the entities of a use case, because we don’t understand the ins and outs of [each company's] use case. We know they need the product and we make sure they have the right product and know how to use it.
Microsoft doesn’t regulate how people use Microsoft Word. There could be a bad actor with a list of bad people, but we really try to be an agnostic product. We know [the product] creates good because we know about the hacks, breaches, and we want to curtail those. Outside of that, trying to regulate our customers is not the business that we’re in.
JM: The other thing Wickr can and does do is [serve as] a resource for their customers. They can’t tell customers what to do. They shouldn’t and don’t want to. But Wickr can say: here’s the product, here’s how it works, here are the different things you can use [it for] and educate on how to do things right.
You take a situation where people are saying: “Woah, because of ephemeral messaging this stuff was lost.” Take the same situation 50 years ago. These paper memos 50 years ago could have been burned. It’s not about the technology, it’s about a person’s actions.
