Uber’s use of encrypted messaging may set legal precedents

(In paragraph 10, corrects to show Uber used a business version of Wickr since October last year, not for the last two years)

By Paresh Dave and Heather Somerville

SAN FRANCISCO (Reuters) – Top executives at Uber Technologies Inc used the encrypted chat app Wickr to hold secret conversations, current and former workers testified in court this week, setting up what could be the first major legal test of the issues raised by the use of encrypted apps inside companies.

The revelations Tuesday and Wednesday about the extensive use of Wickr inside Uber upended the high-stakes legal showdown with Alphabet’s Inc Waymo unit, which accuses the ride-hailing firm of stealing its self-driving car secrets.

Apps such as Wickr, Signal, Telegram, Confide and Snapchat offer security and anonymity, with features including passcodes to open messages and automatic deletion of all copies of a message after as little as a few seconds.

There is nothing inherently unlawful about instructing employees to use disappearing messaging apps, said Timothy Heaphy, a lawyer at Hunton & Williams and a former U.S. Attorney in Virginia.

However, companies have an obligation to preserve records that may be reasonably seen as relevant to litigation or that fall under data retention rules set by industry regulators. In Uber’s situation, chat logs that could help get to the bottom of the trade secrets case are now inaccessible. Uber also faces a criminal investigation over the alleged theft.

“It’s a knotty question for courts and lawyers on when the obligation arises” to preserve records, said Julia Brickell, general counsel at the legal discovery firm H5. But “if someone uses a communication device to specifically hide information from litigation because you knew it would result in litigation, that would be foul from the start.”

Richard Jacobs, a security analyst whom Uber fired in April and now consults for the company, testified Tuesday that up to dozens of employees were trained to used ephemeral messaging systems, including Wickr, to communicate so that their conversations would be clandestine and could not surface in any “anticipated litigation.”

Two officials still at Uber testified Wednesday that multiple teams used Wickr. Among the users, they said, was Anthony Levandowski, a one-time leader of Waymo’s autonomous vehicle efforts who the company alleges brought trade secrets to Uber.

WICKR KEY EVIDENCE

It is unclear when Uber began using Wickr, but the company said that in October of last year…

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