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Don't Delete That Tweet

As more companies jump on Facebook and Twitter, tech vendors including Synmantec, Smarsh and HootSuite are expanding their social media archiving offerings.

March 20, 2012
Related Topics: HR Technology, Technology and the Law, Social Media, Legal, Technology
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Your company has a Facebook page, a corporate Twitter account and an official LinkedIn profile. You maintain a company blog and post videos to a corporate YouTube channel. Your employees use social media for recruiting, marketing and customer service.

So are you archiving all those status updates, tweets and blog posts? And do employees know whether it's OK to delete a tweet if they ever hit "Send," then realize, oops, maybe they shouldn't have shared news about upcoming product rollouts after all?

Chances are the answer is no.

Email archiving policies and systems are old hat in many industries, but few companies record their social media activities or instruct employees about what they can or cannot remove once they've shared it.

But that way of operating could be shortsighted. Technology researcher Gartner Inc., predicts that by the end of 2013, half of all companies will have been asked to produce material posted on social networks as part of discovery for a lawsuit.

Such changing business practices as well as government regulations in financial industries and lawsuits over improperly deleted social media communications are causing more companies to consider using archiving software. "If you're in a highly litigious business, it's valuable to be able to navigate" through social media communications, and archiving does that, says Ken Anderson, an executive at Smarsh, one of a growing number of companies offering the services.

That change is causing a flurry of product rollouts and partnerships. Former email-only archiving specialists such as Smarsh, Symantec and Sonian are expanding into social-media archiving or acquiring their way into the business. Startups such as Arkovi, Hanzo Archives and SocialWare are catering to specific industries and teaming up with third parties to quickly gain clout and market share. Companies such as HootSuite better known for selling social-media add-ons to consumers hope to use their brand-name recognition to gain a toehold in the corporate market.

Investment brokers and other financial services firms were among the first to adopt social-media archiving software, driven by government regulations that require them to save anything they share on online networks.

In January, the Securities and Exchange Commission published a series of alerts on financial advisers' use of social media after taking action against an Illinois investment adviser charged in a Web-based case. The SEC's action came after the Financial Industry Regulatory Authority, or FINRA, issued regulatory notices in 2010 and 2011 that required financial advisers to archive social media communications with investors in a form that can be audited.

But even regulated firms have been slow to adopt archiving technology. When Smarsh polled 223 compliance officers at investment firms and brokerages for a May 2011 survey, fewer than half had policies covering social media communications. Only 45.2 percent said they were confident that if their companies were audited that they could provide specifically requested messages within a reasonable time frame, the survey shows.

Law firms also are required to save what they share or tweet. And any company involved in a lawsuit is subject to amended Federal Rules for Civil Procedure passed in 2006 that made all forms of electronically stored information, or ESI, discoverable, or able to be subpoenaed. The so-called e-discovery rules stipulate that during the standard pretrial information-gathering period, parties to a lawsuit must comply with requests to produce email, instant messages, text messages and other forms of ESI. While e-discovery laws don't explicitly mention social media communications, courts have generally held that communications shared on Facebook, Twitter and the like are "within the scope of discovery," according to a post on Inside Counsel, a blog for corporate lawyers. As a result, e-discovery experts argue that anything that could be considered ESI – including social media mentions – needs to be archived in a way that allows for its retrieval during e-discovery.

Individuals and companies that fail to abide by e-discovery rules can run into serious trouble. In September, a Virginia judge cut almost in half a Charlottesville widower's $8.85 million award from a wrongful-death lawsuit and penalized him and his lawyer for more than $900,000 for making changes to the man's Facebook account, says a newspaper account of the suit. According to the judge's order, during discovery, the defense required the man to share the contents of his Facebook account. However, the newspaper report shows, on the advice of his lawyer, instead of complying the man deactivated his account, allegedly to hide a potentially incriminating photograph that showed him partying not long after his wife's death in a car accident. The lawyer – his firm's managing partner – eventually resigned and planned to retire, the newspaper report shows.

Companies can license social media archiving software to run on their own servers. But as with other business software, on-premises applications are being eclipsed by subscription-based software that lives on the Web, or in the "cloud."

On Jan. 17, Symantec rounded out its existing email and social-media archiving offerings by acquiring LiveOffice, a Web-based archiving startup, a deal some financial analysts valued at $115 million.

In the same week, Arkovi, a Dover, Ohio, Web-based archiving startup, teamed up with BrightScope, the 401(k) rating service, to offer social-media archiving to investment advisers.

Email archiving specialist Smarsh began offering Web-based Twitter archiving in 2009, and later expanded to offer archiving for other major social networks. Today, 350 of the Portland, Oregon, company's 15,000 customers use its social archiving services, including Maxwell Noll Investment Advisors, a Pasadena, California, investment broker. "The cloud model has matured and we're seeing larger and larger deployments," says Anderson, the Smarsh executive. Companies "are sick of the hassle" of on-premises software, he says.

HootSuite, more well known for its aggregation software that lets people manage multiple social network accounts from a single dashboard, is finalizing a deal with an as-yet unnamed partner to provide email and social media archiving to financial services companies, says Greg Gunn, HootSuite's business development director. HootSuite hopes to use the deal to expand into the corporate market, a move that started last fall when the three-year-old Vancouver, B.C., startup bought TwapperKeeper, a Twitter archiving and analytics service. Of the pending partnership, Gunn says: "We wanted to work with a partner that was already FINRA-compliant so HootSuite could be a tool for companies no matter what industry they're in."

As more companies investigate archiving, in-person and online policy training is becoming commonplace, offered by vendors and consultants. Nancy Flynn, executive director of the ePolicy Institute, a research and consulting firm, says that in the past year she's put on several dozen seminars for HR directors, professional records managers, CEOs, IT people and compliance officers. "Without comparison, it's my no. 1 most popular topic," she says.

But convincing non-regulated companies that they should archive tweets and other social media communications is still a tough sell. Even some business partners of archiving vendors haven't taken the plunge.

Mike Alfred, BrightScope's chief executive, says that despite his company's deal with Arkovi, he hasn't felt the need to archive employees' social media communications. Only five of 40 employees use social media on a regular basis, and they "understand how it works and the limitations" they need to put on what they share, Alfred says. Plus, unlike the financial advisers he sells to, archiving isn't mandatory for a small company like his, so must compete with hundreds of other priorities. He says: "We don't have to, but it's smart to do it."

Workforce Management contributing editor Michelle V. Rafter is based in Portland, Ore. To comment email editors@workforce.com.

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