If you read Joshua Clark’s recent post on text messages, you know that, depending on content, they can be government records that are subject to retention rules. The question then becomes: how do we capture them so that we can retain them for the appropriate retention period? There are several methods that can be utilized, from the simple to the more complex, and from the low- or no-cost to the moderate-cost.
The Pew Research Center found through surveys and research that text messaging is regularly used by 97 percent of smartphone users in the U.S., and texting is the feature used most frequently on smartphones. Right now, you may be asking, “Doesn’t the phone company keep all the text messages?” The answer to that is, “Maybe.” Wireless carriers have their own policies and regulatory framework, and are typically governed by the contract you enter into with them. However, if your employees are not using government-issued phones but rather their own personal devices, you could be dealing with multiple carriers with different policies. Another hurdle to clear is that carriers often respond to requests for text messages held by them with, “Not without a subpoena.” See this article from U.S. News & World report for more on this challenge.
It is better to develop your own system for retaining text messages to ensure you are complying with your agency or local government’s policies so you can be confident that you can access and use those records regardless of what your service provider is doing. Below, we’ll outline some methods that can help you to craft policy and retain text messages.
Ban Employees from Creating Records by Text Message
Of course, you might think that all of this is too much trouble and just bar your employees from using text as a format when communicating information that would be considered a record, but for many others, the genie is already out of the bottle. A potential strategy you could employ is creating acceptable use policies that limit texting to transitory records only and requiring employees to delete at regular intervals.
- No cost to this method
- Policy shows a good faith effort is made to comply with retention rules
- Relies on employees having a clear, consistent understanding of what transitory information is
- Transitory information is not typically reviewed before disposal
- Expects employees to follow a schedule for disposition of these texts
User-Driven Capture Via Screenshots
Your agency or local government can decide to have employees be responsible for manually saving their text messages to a government-controlled storage space, like a shared drive, ECM, or similar. This is usually done by taking a screenshot of the messages and forwarding them as an attachment that can be saved. To take a screenshot on an iPhone, you would simultaneously press and hold the power button on the right side on the phone and the home button on the front. To take a screenshot on an Android phone, press and hold the volume down button and the power button. The screenshots will show up in your gallery or photo app and can be forwarded from there. Another way this can be done is requiring employees to include a government-owned number or email address as a party on all texts.
- Low cost
- Does not require employees to allow access to their personal devices
- Relies on employees to carry it out in a consistent, ongoing manner
- Likely loss of metadata about the record, which can be held against the government
- Difficult to organize and search for specific records
Auto-Inclusion through Configuration
Another method that can be utilized is for the state agency or local government to configure their text messaging service or use third-party software to automatically capture each text message sent and received into a repository or into an email sent to the agency or local government.
- Low cost
- Takes onus off employees to capture and retain
- Difficult to organize and search
- Requires you to have access to the devices employees use; some may resist turning over a personal device to you
Finally, you can use a vendor for capture and storage services. You’ll want to ensure that you understand the contract you have with the vendor on issues of retention, access to the records, how records are disposed of at the end of the retention period, and what should happen should the contract be terminated or the vendor ceases doing business.
- Services typically have search function; beneficial for locating records responsive to public information requests, litigation, etc.
- Compatible with most devices, operating systems, and carriers
- Requires access and permission to alter employees’ devices
- Comes with a cost
Whatever method you decide to use, you’ll first need to draw up an acceptable use policy to let your employees know what to expect and what they are responsible for. You can find some examples of policies on this website.