I read the following in the latest SANS NewsBites:
Revised Civil Procedure Rules Mean Companies Need to Retain More Digital Data (4 January 2007)
The revised Federal Rules of Civil Procedure, which took effect on December 1, 2006, broaden the types of electronic information that organizations may be asked to produce in court during the discovery phase of a trial. The new types of digital information include voice mail systems, flash drives and IM archives. This will place a burden on organizations to retain the data in the event it is needed in a legal case.
Section V, Depositions and Discovery, Rule 34 of the Federal Rules of Civil Procedure reads, in part,
"Any party may serve on any other party a request to produce and permit the party making the request, or someone acting on the requestor's behalf, to inspect, copy, test or sample any designated documents or electronically stored information - including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained ..."
This ComputerWorld article adds:
According to a 2006 study by the American Management Association and the ePolicy Institute, more than half of those who use free IM software at work say that their employers have no idea what they're up to.
There are two ways to look at this problem. The first involves limiting the amount of data available, i.e., data creation. Brian Honan mentions this in his commentary for SANS:
Make sure to include how to deal with personal electronic devices such as PDAs and pen drives - hint best to prohibit their use in a corporate environment in the first place.
Yeah, right. Everything is going to have USB/Bluetooth/whatever connectivity and a flash drive sooner or later. We're already seeing this will cell phones and integrated cameras. It's almost impossible to not buy a new cell phone without a camera. One of my clients is considering banning cell phones with cameras in the office. That absolutely will not work. Who is going to enforce that policy? They don't have guards and no guard is going to strip-search employees to find cell phones with cameras.
The second way to look at the problem involves limiting data retention. In other words, don't save as much data and therefore have less data available for legal scrutiny. That is absolutely going to fail too. The trend across all sectors is to retain more information. Section 10 of the PCI Security Standard is just one example. Since 2003 the National Association of Securities Dealers (NASD) has required financial firms to retain IM for three years. The Securities and Exchange Commission (SEC) has already fined companies millions of dollars for not retaining email for at least three years.
I would not be surprised to see best practice evolve into requiring network traffic retention systems, perhaps at the session level or maybe even at the full content level. I would also not be surprised to see requirements for intercepting outbound encrypted traffic for inspection and retention purposes. The only reason we don't see those requirements yet is regulators don't understand how any protocol can be tunneled over any protocol, as long as the endpoints understand the mechanism involved.