The U.S. Justice Department is considering new guidance for corporations on employees’ use of messaging applications and personal devices, as widespread use can thwart compliance and investigations.
The agency’s criminal division is contemplating taking action on the issue given rapidly changing technology, differing industry expectations about retaining work documents and privacy implications, Acting Principal Deputy Assistant Attorney General Nicole Argentieri said at an industry event on Thursday.
Currently, the Justice Department considers whether companies that allow use of disappearing messaging apps are regularly examining their compliance on records retention. But scrutiny over the use of such apps and personal devices has been on the rise, as they can complicate corporate efforts to comply with laws as well as any potential investigations into wrongdoing.
The U.S. Securities and Exchange Commission (SEC) separately has been scrutinizing how Wall Street firms are handling work-related communications on personal devices and apps such as WhatsApp.
The Justice Department is also considering whether it needs to offer more guidance on how prosecutors weigh a company’s executive clawback policies in investigations into corporate misconduct, Argentieri said.
Justice Department officials are meeting with counterparts at the Securities and Exchange Commission, defense attorneys, executive compensation experts and other regulators to look at ways prosecutors may potentially reward companies for such policies, she said.
The Justice Department under President Joe Biden has already detailed a number of policy changes aimed at more aggressive policing of corporate wrongdoing. The moves have been praised progressive watchdog groups and criticized by some attorneys who argue they may prevent companies from coming forward when they uncover wrongdoing.
Argentieri emphasized benefits to self-reporting, including that prosecutors may not require a third-party monitor for companies that cooperate and prove they have tested a compliance program.
“Do not wait for us to call you. By then, it’s too late,” she said.