Google is going to give administrators the option to disable Gmail's confidential mode for employees, putting the responsibility to preserve any necessary evidence on companies and executives.
In April, Google announced that Gmail would be getting a whole slew of new features, including one that sounds a lot like Snapchat and Wickr — the content-expiring messaging platform that put Uber in a sticky situation in the recent Uber vs Waymo case.
Gmail's new confidential mode lets users set an expiration date on outgoing emails, so that the content of the email eventually disappears. Microsoft Outlook, Exchange, and various third-party extensions offer a similar feature, but Gmail's version is more widely accessible and easier to use. It rolled out to personal account holders using the new Gmail in May, and later this summer it'll be available to business accounts.
Companies that enable it should be wary of the repercussions, however. Just last year, Uber was forced to admit that it had relied on Wickr to communicate internally during the period of time that Google alleged the ridesharing company was stealing technology from its self-driving car division. The messages were never retrieved, and the case ultimately ended in a settlement — widely seen as a win for Uber.
The case raised a question about whether platforms using ephemeral (temporary) messaging should be regulated. Recognizing the blurry ethical lines, CEO Dara Khosrowshahi even told all employees to stop using encrypted messaging platforms when discussing Uber business before the case went to trial. A few months after the case closed, Gmail announced it would be releasing confidential mode.
"There's nothing wrong with [expiring messaging] inherently," said David Horrigan, discovery counsel and legal education director at Relativity, adding that this was basically the way emails were sent back when storage space was a concern. "It's the way that it's used that matters."
Google says its version is slightly nuanced in that the emails are never truly destroyed, making it more difficult to use it malevolently.
"Confidential mode does not equate to the Snapchat of email," a Google representative said to Business Insider in an email. "Received messages in confidential mode do not 'explode,' 'self-destruct,' 'vanish,' or “disappear.'"
After it 'expires,' the confidential-mode email continues to exist in the sender's Sent folder, and becomes a shell of an email with nothing but a subject line in the receiver's inbox. To prevent negligent behavior from employees, the Google representative said that when the feature rolls out to companies, administrators will also have the option to disable the feature internally and reject incoming confidential-mode emails.
This safeguard puts the responsibility on administrators and executives, making it difficult for companies to argue negligence; courts have welcomed arguments for things far less offensive than intent, reasoning that "the other side is still damaged by your spoliation of that evidence," according to Horrigan.
With confidential mode, Google might have figured out the right balance between individual security and company accountability. We'll know for sure once companies are able to start adopting the new feature.