Fairwords Weekly: Data Retention and Archiving, Voluntary Self-Disclosure Policy, and Risk Management Shortcomings
April 6, 2023
“I’ve had several lawyers say that if you are using a phone for personal and business use—and you don’t have the management software to segregate the data—that really is high risk.”
– Mark Henriques, Partner, Womble Bond Dickinson
This week, we explore the importance of data retention and four reasons to incorporate archiving into your communications technology strategy. We learn about the new Department of Justice (DOJ) policy for companies to voluntarily self-disclose misconduct. Finally, we consider how the recent bank failures highlight the shortcomings of risk management.
Data retention is an ongoing concern for businesses, with the complexity and burden of these demands growing as electronic communications evolve. Employees have multiple platforms for communication, both for official and personal use, many of which support ephemeral messaging. Ephemeral messaging poses a challenge for data retention as messages often exist for a limited period and are then deleted automatically from the app, making them difficult to collect. Companies must balance retention risks with the practical reality that such apps may advance key business objectives. Legal teams must also take proactive steps to minimize risks.
US attorneys for the Southern and Eastern Districts of New York have launched a new policy setting national standards for when corporations receive credit and benefits for self-reporting misconduct. The new policy enables companies to limit potential criminal liability by standardizing how voluntary self-disclosures are defined and credited and incentivizing companies to maintain effective compliance programs. Companies must meet compliance standards to qualify for the credit, including making a voluntary disclosure with no pre-existing obligation to disclose. According to the policy, in some circumstances, companies may be able to limit or prevent criminal penalties.
Archiving digital communication has become critical and sensitive information when shared through digital communication channels such as email, chat, SMS, meetings, and team collaboration sessions. It is vital for compliance and internal governance, finding critical communications or contextual search, and continuity and preservation. Archiving allows communication organization almond indexation, making it easier to search for specific information. Archiving can also help if communication information is accidentally or maliciously deleted.
Experts say that risk oversight is a persistent issue that needs attention in the wake of recent bank collapses. Board-level risk committees at many banks need more expertise and power to challenge corporate leadership, a weakness that should be addressed. While the largest banks are required by law to maintain a risk committee, they often need more expertise to stand up to senior management. Good risk management can protect a bank during extreme stress, but it is laborious and technical work that involves identifying potential trouble spots. Since the financial crisis, many global institutions and U.S. regional banks have significantly improved risk oversight. Still, the effectiveness of bank boards’ risk oversight falls on a continuum.