In today’s digital age, most of our communication happens electronically through emails, text messages, social media messages, and other digital platforms. With so much messaging happening, questions sometimes arise around the legality of deleting these messages. Can deleting messages ever be considered obstruction of justice or illegal destruction of evidence? What are the risks associated with deleting messages? Let’s take a closer look at when deleting messages could potentially be a crime.
When does deleting messages become illegal?
In most everyday circumstances, there is nothing illegal about deleting your own messages. Just like throwing away a physical letter you’ve received, you’re free to delete any messages in your own inbox that you don’t need or want to keep around. However, once certain legal circumstances come into play, deleting messages could cross the line into illegal destruction of evidence. Here are some key examples:
When messages are subject to discovery or subpoena
If messages have been requested by the opposing side in a lawsuit or legal investigation, deleting them could obstruct justice. Once you have received notice that your messages are subject to e-discovery or subpoena in a legal proceeding, you have a duty to preserve that evidence. Deleting it at that point could violate evidence tampering or obstruction of justice laws.
When an investigation is already underway
Similarly, if you delete messages after learning about any investigation or legal action in which those messages may be relevant evidence, that could be illegal destruction of evidence. For example, if your company is being investigated for financial fraud and you start deleting emails related to financial reporting, that impedes the investigation by destroying relevant evidence.
When messages are related to serious crimes
Deleting messages that demonstrate involvement in serious crimes like drug trafficking, child pornography, threats of violence, or other felonies could on its own be considered obstruction of justice. The content of the messages makes them material evidence to serious crimes, so deleting them is likely illegal.
What are the risks and penalties?
The risks and penalties for illegally destroying evidence by deleting messages depends on the exact circumstances and jurisdiction. Here are some potential legal and career risks to keep in mind:
Criminal charges
Depending on the situation, deleting messages could potentially lead to criminal charges like obstruction of justice, tampering with evidence, or interference with a criminal investigation. The level of criminal charge would depend on the severity of the underlying case.
Civil liability
In civil lawsuits, deleting relevant messages could open you up to civil liability for intentional destruction of evidence and other sanctions imposed by the judge. At minimum, it weakens your defense and raises suspicion.
Career fallout
If the messages were deleted in a professional context, like exposing a company’s wrongdoing, there can be serious career implications like getting fired or barred from your industry. Even if it does not rise to actual criminal charges, it could still end your career.
Reputational damage
In many cases, the news of an investigation and accusation of deleting evidence can cause lasting reputational damage, both personally and professionally. People may be left thinking you violated the law even if charges are never filed.
When is it okay to delete messages?
While deleting messages carries risks in certain situations, there remain plenty of instances when it is perfectly legal and routine to delete messages. Here are some general guidelines on when it is usually fine to delete messages:
Personal messages not relevant to any investigation
There is no requirement to indefinitely store every text message, email, or social media DM you exchange in your daily personal life. As long as they have no relation to any legal action, you’re free to delete them.
Before any legal holds or requests are in place
If no lawsuits or investigations have commenced, and you have not been notified of any obligation to preserve messages, you can freely delete messages that you no longer need to retain for your own purposes.
In accordance with company retention policies
Many companies have standardized retention policies dictating when emails and other messages should be deleted. Deleting messages in compliance with those pre-established retention schedules is appropriate.
To save storage space
It often makes sense to delete large volumes of messages that are taking up extensive storage space, especially if they are beyond typical retention periods and not relevant to any ongoing matters. Doing occasional “clean-up” deletions to conserve storage is generally fine.
Best practices
To avoid even the appearance of impropriety, follow these best practices around deleting messages:
Stop deletions once retained for legal reasons
If you have been notified of a lawsuit, investigation, or other matter making messages relevant, immediately stop deletions. Also preserve messages already in your inbox at that point.
Review retention policies and update if needed
Make sure your retention policies strike the right balance between storage limits and maintaining critical business records. Update them if they are out of date.
Be consistent and transparent
Enforce deletion policies consistently across your organization. Never delete just specific problematic messages. Avoid sneaky deletions.
Consult legal counsel if unsure
If faced with a tricky situation involving message deletion, seek guidance from legal counsel to understand your obligations.
Conclusion
On the whole, casually deleting your own routine messages is typically not illegal. However, once messages become relevant to an active case or investigation, deleting them crosses into obstruction of justice. To avoid this, halt deletions once legal proceedings commence that may involve message evidence. Consulting with legal counsel is wise any time you are unsure if deleting messages could constitute improper destruction of evidence. With some care taken around retention policies and transparency, organizations can usually delete messages when warranted without undue legal risks.
Frequently Asked Questions
Can my messages be recovered if I delete them?
In many cases, yes. Deleted messages can be recovered from email servers, devices, cloud backups, and archives. So deleting messages does not always permanently destroy them as evidence. However, purposefully deleting with the intent to obstruct justice is still illegal.
What if I delete messages accidentally?
The accidental or unintentional deletion of messages relevant to an investigation is still technically illegal tampering with evidence. However, such accidental deletions are far less likely to actually be prosecuted as crimes compared to intentional destruction of evidence.
Can I get in trouble for deleting my own personal messages?
Typically not, as long as they are your own private communications unrelated to any crimes or investigations. Exceptions could be messages evidencing crimes or if the messages become subject to discovery in a lawsuit against you.
What if I have a different policy for executives deleting messages?
Enforcing special retention and deletion rules for executives that help hide wrongdoing could draw scrutiny for obstruction of justice. Policies should be consistent across the organization.
Is deleting messages unethical even if not illegal?
In many cases, yes. Even if not outright illegal obstruction, deleting relevant messages can undermine transparency, accountability, compliance, and business ethics. There is often reputational risk.
Key Takeaways
– Deleting messages is generally legal in everyday personal contexts, but can cross into obstruction of justice if the messages are subject to legal proceedings or investigations.
– Once notified your messages are relevant to litigation or subpoenaed in an investigation, you have a duty to preserve them and stop deletions.
– Deleting messages evidencing involvement in serious crimes could itself be a felony obstruction of justice.
– Penalties for unlawful message deletion can range from criminal charges to civil liability, career fallout, and reputational damage.
– Follow best practices around consistent retention policies, legal holds, transparency, and getting legal counsel when unsure.