With 2018 in the archives, Hanzo is starting off the new year with a look ahead to the trends and challenges we believe will define the compliance and eDiscovery landscape in 2019, and a look back at the year that was at Hanzo, in the news, and with regulatory bodies governing our community.
Over the past 12 months, our team performed 521,191 web crawls and archived 427,352,167 pages. By dynamically archiving over 1.17 million pages every day, we help brands remove the mystery from their digital history, capturing and preserving their interactive web, social media, and marketing content in immutable WORM formats compliant with SEC Rule 17a-4, MiFID II, FINRA 10-06, 18-15, and 17-18, and other regulatory record-keeping requirements.
Over the past 5 years, our unique technology has crawled over 2.5 million pages and archived over 2 billion pages. If you’re new to Hanzo and not exactly sure who we are or what we do, our Chief Commercial Officer, Keith Laska, was featured on Ari Kaplan’s Reinventing Professionals podcast in December, where he shared Hanzo’s origin story in 60-seconds.
For another look at our origins, step into the time machine and go back to 2009, when Ted Ryan, Coca-Cola’s web archivist, hired Hanzo to help preserve and archive the brand’s digital history. In the video, you’ll see how our dynamic, interactive format stands the test of time by providing context for future Coca-Cola digital team members around how things used to look, feel, and function through fully preserved pages that include video and social media streams.
From a legal and regulatory perspective, in 2018, we observed 11 specific cases that covered misconduct and regulatory failures at an individual and corporate level, and resulted in over $60,000,000 in total fines.
For a complete breakdown of all the SEC, FINRA, and other regulatory activity around web archiving, preservation, retention, record keeping, and investigations, read our 2018 Regulatory Year In Review.
Now that we’ve reflected on the past, it’s time to take a look into the future. Based on our experiences in 2018, market trends we’ve observed, and client feedback we’ve received, we feel confident that these trends, and the challenges that stem from them, will be top of mind in 2019. These are Hanzo's 3 web archiving and eDiscovery trends and challenges for legal and compliance in 2019:
1. Ownership and Privacy Around Social Media Data Will Garner More Attention (and Outrage)
It’s no secret that many of us are spending more time on our smartphones, and the social media platforms designed for them, than any other form of media or digital entertainment. According to Statista, In 2018, 52.2% of all website traffic worldwide was generated through mobile phones, eclipsing desktop traffic and trending upward. The sheer volume of this activity, and the amount of content created by consumers to be shared on their social channels, is staggering.
This prolific behavior by both consumers, and the marketers vying for their attention (and dollars), is driving the need for new regulations and laws around the data generated as a result of this activity. It’s also making organizations and brands more aware and cautious of the impact a rogue employee’s social media behavior can have on their reputation and bottom line.
The EU’s General Data Protection Regulation (GDPR), which went into effect on May 25 2018, was the most significant (and potentially costly) compliance change around data privacy and digital rights in years. A data breach impacting 50 million accounts that Facebook experienced in Fall 2018, according to ZDNet, could lead to fines upwards of 1 billion dollars.
But GDPR is just the first domino in a series of changes that we expect to transpire in 2019 and beyond, both in relation to the rights people have over their own online data, their awareness around how that data is being capitalized on, and the challenges organizations will face in how that data is used, collected, and archived.
California has already taken action, proposing a new digital privacy law which encompasses many of the principles at the heart of GDPR, set to go into effect in January 2020, and with the can of worms around data privacy now opened, it’s only a matter of time before the focus becomes even more granular and intense around specific use cases.
A massive story written by the New York Times this past December lifted the veil on how location data is collected by our smartphones, anonymized, and sold to advertisers and others looking to make smarter, more profitable business decisions around consumer behavior and location. Their investigation revealed that during a three-day period in 2017, over 235,000,000 location data points were captured from 1,200,000 unique devices, providing a small glimpse into the sheer volume of location data being shared, knowingly or not, by smartphone owners wherever they go. And as we collectively become more conscious of this information, people will take to social media to share their outrage and demand more transparency into how their behavior is being productized.
What all of this goes to show is that we’re ushering in a new age of consumer awareness around data privacy, but what’s still unknown for many is exactly when the rules of “privacy” do and don’t apply.
In the recent case of Forman vs. Henkin, written about on our blog and discussed on the podcast below, the New York Court of Appeals ruled that “private” Facebook posts were still subject to the standard rules of discovery during litigation, and are not entitled to any special protection based on the user’s privacy settings.
So when are “private” content and social posts truly private, and how might this case impact future litigation around the information collected on social media? Time will tell, but for organizations looking to mitigate their risks around social media use at a corporate and individual level, a comprehensive and dynamic archive of their activity is a step in the right direction.
2. The Increased Use of Artificial Intelligence (AI) Will Help Improve the Efficiency and Scope of Investigations
In 2018, Gartner’s annual CIO Survey revealed that only 4% of surveyed companies had an AI-based solution deployed in their business, but 47% of CIOs cited artificial intelligence as their most pressing technical capability to differentiate how their business grows, as well as where they need to invest. Meanwhile, reports on marketing trends for 2019 from Edelman, Entrepreneur, and Single Rain all expect growth in the use of AI to improve personalization, user experience, and automation.
LinkedIn’s “50 Big Ideas for 2019” boldly predicts that this year, “AI will be in every industry and every job.”
“Disruptive emerging technologies will play a major role in reshaping business models as they change the economics of all organizations. Gartner asked CIOs and IT leaders which technologies they expect to be most disruptive. Artificial intelligence (AI) was by far the most mentioned technology and takes the spot as the top game-changer technology away from data and analytics, which is now occupying second place.” - Gartner
As the use of artificial intelligence and machine learning become more standardized and adopted across different business processes, we expect the legal and compliance fields to begin leveraging these modern technologies to ease the burden of processes that were typically manual, difficult to scale, and time-consuming.
In a Fast Company article from June 2018, we shared our perspectives on how Hanzo can be used to help insurance companies investigate fraud claims through AI-driven social media crawls. Our Hanzo Investigator tech, recently released, is designed to simplify and expedite the eDiscovery process around social media activity through the use of AI, preserve the information in its native format, and export the content into popular platforms like Relativity to enhance the review process and add valuable levels of context.
3. The Growing Fragmentation of Digital Communication Channels and Experiences
Today’s business landscape is more connected and integrated than it’s ever been, but those points of connectivity, and sources of data, are spread across more platforms and channels than ever before too. Not so long ago, an employee’s digital history within your organization could have been confined to their emails and perhaps one or two other internal or external platforms. Now, a chain of messaging and activity for one marketing project can traverse email, Slack, JIRA, Google Drive, Facebook, LinkedIn, and other collaborative, social, and chat-based platforms.
“Modern applications designed to rethink enterprise communications, data storage, task tracking, customer relationships, or content management can pose unique discovery, collection, and processing issues. It’s a ubiquitous issue given how easily accessible these products are, making it a regular discussion topic amongst peers. The issue here is that these products are not traditional disk-based content stores that can be collected from a hard drive or file share. We’re talking about web-based products that require a live browser collection.” - Ben Robbins, Senior Manager of eDiscovery, Forensics, and Information Governance at LinkedIn
In the past, that project could produce a static PDF for someone to download and read. Today, the culmination of that project could be an interactive, personalized digital experience that is unique to each individual who encounters it, and produces different results based on their engagement.
For compliance, risk management, and eDiscovery professionals, the personalization of digital content and user experience, growth of collaborative systems, and multitude of content types and social platforms creates unique challenges for the collection, preservation, and archiving of this information.
When it comes to eDiscovery or compliance responsibilities during an investigation, piecing together that complete story can feel like a complex puzzle, and each added channel or platform can add another level complexity to their goal of that complete, holistic picture of what truly happened in a specific investigation or regulatory infraction. On top of that, LinkedIn’s ‘Big Ideas for 2019’ also believes that regulatory changes like GDPR, and how organizations react to them, will only increase the scope of the internet’s fragmentation.
“Europe’s global data protection regulation (GDPR) has led some companies to overreact and block their sites to European visitors. Other jurisdictions are following suit and considering data localization laws. “You're going to end up with cross-cutting national and regional laws that are reaching over their borders, making it very difficult for companies to comply.” - Emily Taylor, Oxford cybersecurity expert
In 2018, we saw a few specific examples of case law that exemplifies the eDiscovery, web archiving, and preservation challenges of an increasingly fragmented, personalized, and interactive digital environment, including Leideg vs. Buzzfeed and McDonnel Group, LLC v. Starr Surplus Lines Insurance Co. Both cases provide clear examples of why it’s not just a best practice, but a necessity, to archive and preserve content in its native format instead of a more traditional PDF document.
What predictions do you have for compliance and risk in 2019? What challenges is your organization aspiring to overcome this year? Get in touch with us to discuss those challenges and ideas, and how our archiving, eDiscovery, and investigations technology might be able to address them.