The Digital Markets Act is set to provide European Union citizens with additional privacy rights. But like the General Data Protection Regulation (GDPR), it also further increases the risk and potentially heightens the complexity of preserving, collecting and reviewing EU-based custodians’ data.
On March 24, the EU and the European Parliament approved the European Commission’s Digital Markets Act that extends new obligations and limitations on Big Tech “gatekeepers.” The Commission defined gatekeepers, in part, as providers of an online service, such as a search engine, social networking site, online video-sharing, cloud computing or operating system, that has more than 45 million monthly active end users.
Gatekeepers’ new obligations under the Digital Markets Act include requiring consent before combining data across platform services. Non-gatekeeper companies can also request that gatekeepers allow interoperability between messaging services. Initial penalties for violating the act could reach as high as 10% of the gatekeeper’s total turnover in the preceding financial year.
To be sure, it’s not certain how many businesses will request additional interoperability with gatekeepers after the law goes into effect, perhaps in October. However, such software changes could complicate e-discovery or create opportunities to enhance e-discovery services, industry observers said.
Orianne Auger, head of discovery at Luminance, said such interoperability could complicate data formats. For example, when extracting data from an iPhone, it would be an Apple file but after the Digital Markets Act goes into effect, that iPhone may have Android files saved in it.
Clearly presenting those messages with different file types without losing key data may also be challenging, she added. “It will be really interesting how the e-discovery market will replicate that in their platforms,” Auger said. “The display of messages has consistently been challenging.”
To be sure, Auger doesn’t believe interoperability will immediately become an issue when the act takes effect. But when multiple text messaging software providers do sink deeper into popular telecommunications and social media platforms, it could eventually create collection and extraction issues, added Shook, Hardy & Bacon partner and data and discovery strategies practice co-chair Patrick Oot.
“I think from the start we are not going to see much of a change from the discovery world because of the current framework for the multiple tools you have to go to to collect separately,” Oot said. “It will be interesting to see, as content bleeds over to the various platforms, how collection and extraction for discovery purposes will occur. I think that will be the big challenge going forward: determining which information sits in a gatekeeper’s platform and which information sits in a non-gatekeeper’s platform.”
However, while interoperability could create additional discovery hurdles it could also spur e-discovery software innovation, Oot added. For instance, the preservation and collection of ephemeral messages, a “or walled garden,” could be simplified, he noted.
“I think the DMA, how it would work at least from a gatekeeper’s platform, would allow for discovery tools to collect the information for discovery purposes from walled gardens,” Oot said.
Interoperability can also expand the amount of relevant litigation repositories available to counsel and their clients, added Innovative Driven consultant Philip Favro.
“If there’s interoperability the question becomes, in my mind, is the data stored in more sources?” he asked. “If you’re exchanging messages from iMessage and WhatsApp and so forth will there be different repositories or more than one repository to collect that information? If it is, it could potentially provide litigators, especially plaintiffs that have been frequently burned in recent e-discovery matters with the spoliation of text messages … more potential [ways] to pull relevant information.”
Still, such access and software design hinges on the possibility that non-gatekeepers will leverage their new interoperability opportunity provided by the Digital Markets Act.
