How Federal Agencies Can Capture Text Messages for E-Discovery

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The Federal Records Act has been a staple of government transparency since 1950. With a 2014 amendment, the definition of a federal record expanded to include electronic messages, which includes SMS texts. Agency-related communications — both physical and digital — must be preserved as part of the public record for a required retention period.

But conversations often organically shift from business to personal and across multiple mediums. While agencies can prohibit workers from using certain communication channels like texts, government employees need flexibility in how they communicate — now more than ever.

Understanding text messaging trends and habits

Knowing how people use text messaging is crucial to creating a communication policy that encourages efficient collaboration and supports recordkeeping compliance. It's also important to recognize that many people perceive text messaging as private communication, likely due to its history for personal use. However, text messaging has become fully engrained in the business world, and texts containing business-related information are not considered private.

A common trend that can be seen at both federal and local levels across the country is the use of personal devices to send business-related texts. Despite messages being sent or received on personal devices, courts have consistently ruled that government-related texts are considered public records. Federal workers shouldn’t expect privacy when it comes to work communications, whether they are in the form of emails, text messages or anything else.

Ultimately, it’s a balance. When federal workers are permitted to text about government-related matters, they can quickly and easily check in on projects or follow up on time-sensitive issues. However, both agencies and workers need to know that these messages are considered public records and must be archived no matter how unexciting the texts are or on whose device they were sent or received.

Common text message capture and archiving shortcomings

Many federal agencies are failing to capture and archive SMS/text data, or they believe their existing policies are sufficient. Unfortunately, many existing policies are often manual, time-consuming, inconsistent and reactive.

These improper records management methods include:

  • Taking screenshots of text messages to create records
  • Forwarding text messages to email to retain them
  • Relying on wireless carriers to keep the records
  • Exporting text messages to Excel files
  • Deleting text messages and conversation histories
  • Prohibition policies (it is in the employee’s contract or considered a best practice not to text), which are unknown or unacknowledged

While there can be an agency-wide policy advising against the use of texting, it only takes one errant text to put the agency at risk. Instead of trying to prevent text messaging at work, federal agencies can minimize risk and stay ready for e-discovery events with tools to capture and retain all text messages.

Including text messages for effective e-discovery

Federal agencies need the right technology and policies to handle all communication types, including text messages. Using a central solution, agencies can retain, retrieve and quickly review all channels of communication in one seamless archive.

We recently created a guide for federal agencies on how they can empower worker communications while complying with recordkeeping requirements. In the guide, we cover:

  • Federal government text message preservation and oversight requirements
  • The Electronic Discovery Reference Model (EDRM), an analysis and production model for streamlining the e-discovery process
  • Benefits of a modern text message archiving and e-discovery solution for federal IT and legal teams
  • How Smarsh makes e-discovery faster and more effective

More on how federal agencies can capture texts and streamline e-discovery in this guide.

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