The SEC, however, can’t “investigate” this issue by examining companies’ records—companies have no records of these communications. So the agency is demanding, directly or indirectly, that the firms’ employees have their personal devices scoured for such records. Inevitably, though, some of those devices have very sensitive personal information that no one would want exposed to scrutiny—by their lawyers or anyone else—and the public has no inherent need to learn….
Again, the question presents itself: Shouldn’t these employees have some right to privacy?
How important is this investigation anyway, other than as a publicity and fundraising endeavor? Are texts on WeChat or WhatsApp more like written communications or oral discussions—telephonic or otherwise—for which there is no requirement of retention? Even if they are, technically, the equivalent of written communications, how important is the issue? It’s one thing when an investigation involves two firms and communications are produced by one firm pursuant to a subpoena but not by the other. Then, there may be a reasonable basis to look at the processes and procedures at the nondisclosing firm. But in the ordinary course, is it worth a separate investigation and the inevitable invasions of personal privacy? Again, doesn’t the SEC have more important fish to fry?
‘Enforcement 40’ for 2020
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