Think Before You Send: Why “Disappearing” Can Come Back to Haunt You

Gone are the days of simply texting or calling. Today, most of us communicate across multiple apps at once. Whether it’s Snapchat, WhatsApp, Messenger, Instagram, Signal, Telegram or TikTok, it’s not unusual to have several conversations with the same person across different platforms.

One feature that has become increasingly common is disappearing messages. Snapchat may have led the way, but now almost every platform offers some version of it. Even Instagram has “Vanish Mode”.

Aside from making it impossible to remember where you told your best friend that piece of gossip, disappearing messages are becoming a serious issue for many people.

The Problem with “Disappearing” Messages

There’s something psychologically reassuring about a message that appears temporary. People often say or send things they would never ordinarily put in writing because they believe the content will vanish forever.

Maybe it’s:

• a message to a drug dealer seeking a quick hit;

• a risky photo sent to someone attractive; or

• harsh words exchanged during an argument that you regret the next morning.

  
  

The problem is disappearing messages do not always truly disappear.

While the message may vanish from the app interface, that does not mean it is gone permanently. In reality, these messages can often be recovered, and later used against you.

Sometimes it is as simple as:

• the recipient taking a screenshot

• photographing the screen with another device, or

• downloading the conversation history.

  
  

Many people are surprised to learn that platforms such as Snapchat allow users to download saved conversation data. If the other person has saved messages within the chat, those messages may remain accessible indefinitely. This can happen without your knowledge.

How These Messages End Up as Evidence

In NSW, we are increasingly seeing ‘disappearing’ messages relied upon as evidence in both criminal and family law proceedings.

Screenshots of supposedly temporary messages are frequently used in allegations involving intimidation, stalking, harassment or domestic disputes. In family law matters, comments made years earlier in moments of anger can later be placed before a Judge and used to paint a negative picture of a party’s character or conduct.

Most commonly, however, disappearing messages become the downfall of people who believe encrypted apps make them untouchable.

I have represented countless individuals accused of drug supply, conspiracy and importation offences who assumed that using apps like Signal or Telegram would protect them from detection. The messages may have disappeared from the screen, but they almost always appear later, printed and compiled neatly in the brief of evidence.

One particularly serious example involved former NSW Police officer Mitchell Lucock. Mr Lucock used Telegram and Snapchat to communicate about and seek access to child abuse material. Unbeknownst to him, he was communicating with an undercover Australian Federal Police officer on Telegram. Following his arrest, Police were able to recover conversations from both applications, leading to further serious charges. Mr Lucock was ultimately sentenced to 18 months imprisonment, with release after six months subject to conditions.

How Police Access These Messages

There are several ways NSW Police can obtain supposedly disappearing communications.

In some cases, undercover officers are involved directly in the conversation. While it may sound unlikely, this occurs more frequently than many people realise.

More commonly, Police seize electronic devices and conduct forensic examinations.

Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”), Police may seize electronic devices during lawful searches where they reasonably suspect the device may provide evidence of an offence. Devices may also be seized during the execution of a search warrant, depending on the terms of the warrant.

Forensic analysis of phones, computers and tablets can be a lengthy process. However, it regularly results in the recovery of messages and data that users believed had long disappeared.

Increasingly, Police are also relying on Digital Access Orders under Division 4A of LEPRA.

These orders can compel a person to provide access to specified electronic devices, applications and accounts. That may include providing:

• passwords;

• PIN codes;

• Face ID access;

• fingerprint access;

• or multi-factor authentication details.

Failing to comply with a Digital Access Order is itself a criminal offence carrying a maximum penalty of up to five years imprisonment.

Think Before You Send

The safest approach is this: assume every message, image or video you send may one day be seen by someone else.

That may sound extreme, but disappearing messages often create a false sense of security. In reality, digital communications are rarely ever truly temporary.

So before pressing “send”, ask yourself one question: Would I be comfortable seeing this message printed in a courtroom years from now?

Because often, disappearing messages do not disappear at all.

Authored by Mickaela Mate of Mate Lawyers

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Mickaela is an Accredited Specialist in Criminal Law and the founder of Mate Lawyers. After graduating Newcastle University with First Class Honours, Mickaela worked in a boutique criminal defence firm located in Kings Cross. There, Mickaela had carriage of a wide variety of matters, from traffic matters to drug importation and murder.

In 2020, Mickaela started Mate Lawyers with a focus on providing the best result for each client. Mickaela takes an individualised approach, remembering that a criminal matter is likely to be the most stressful experience any of her clients experience in their life. Mickaela supports each client on their journey through the criminal justice system. Although she may be kind and empathetic to clients, Mickaela is known as strong advocate who fearlessly and fiercely represents each one of them. She is skilled at cross-examination, often receiving praise from the judicial officers on her approach to questioning. Mickaela has significant experience in a variety of criminal matters, including:

• Sexual assault

• Drug possession, supply and importation

• Assaults, including domestic violence and assaults on police officers.

• Weapons and Firearms offences, and prohibition orders

• Robbery matters

• Driving offences, including drink and drug driving

• AVO matters

• Fraud