Just when you thought you had wrapped your head around all the various flavors of social media, here comes the new kid on the social media blog to flip the script yet again! Founded in 2020, Clubhouse is an invitation-only audio-chat social networking application that has skyrocketed from a $100M valuation in December 2020 to over $1B in January 2021. It is growing at a rate that puts Facebook and Instagram to shame and shows no signs of slowing down. Legal practitioners would be well-served to understand what exactly it is, how people are engaging with it, and what legal questions and evidentiary concerns it poses.
WTF is Clubhouse?
Reminiscent of internet chat rooms where a group of various strangers could join an open room and talk about whatever subject tickles their fancy, Clubhouse is an unmoderated series of voice chat “club rooms” that anyone can join.
Sitting at 3 million subscribers as of the beginning of February and 10 million by the end of that month, the app gained notoriety because it was invite-only and populated by celebrities, influencers, and even tech moguls like Elon Musk and Mark Zuckerberg. Like a mix between a live podcast, a Reddit board, and talkback radio where all the chats disappear once the conversation is over, this app poses great strides forward in social connectedness but also risks that the creators may not have foreseen.
What are the dangers?
Clubhouse seems, at first glance, a pretty low-risk platform, especially, given that the platform is not archiving or recording the audio interactions. But, just because the platform does not facilitate retaining audio files does not mean that the participants cannot do so themselves, or worse yet make a claim about what was shared without proof to back it up.
Anybody can listen and record
While the platform is “invite only,” any person who is a member can invite a certain number of new users based upon engagement with the app and there are no clear limitations on who the invitees might be. The invite-only nature has driven interest in the application far disproportionate to its three million users.
Designed to be more free-flowing and less of an echo chamber than legacy platforms, Clubhouse lets users freely drop in and out of any room. People in the chatrooms often feel as comfortable as if they are talking with a close group of friends, but the attendees often span the globe and can number in the hundreds or thousands in a single room. Any person can use their laptop or mobile phone to capture audio or share what is said in the room. Depending on the topic this could easily become digital evidence in a case.
A few days ago a New York Times reporter put a tech mogul on blast for using the “r-word” in a club room in the context of the Wall Street Bets/GameStop story. Claims of using derogatory or discriminatory language can have a material impact on the people the term hurts and the person accused of using it, like the flurry of calls to cancel comedian Tom Segura for using the same word in a recent Netflix special.
In this case, unlike with Segura, the claim was inaccurate and immediately rebuffed by other members of the room, but had the other members not stepped forward, the accused could face substantial personal or economic backlash. High-profile and not-so-high profile people alike have little resource if a false claim is levied and they do not have other members or audio recording to refute a claim.
But is it discoverable?
Of course it is potentially discoverable. While this is not yet case law about this specific platform, there is ample precedent for audio evidence being in scope and even courts sanctioning for failure to preserve audio evidence. The application does not currently record the rooms in the normal course of doing business, which alleviates some of the burden under 37(e). Yet, there is nothing to prevent any attendee or participant from recording. In the event a recording does exist on any medium, it is potentially discoverable.
If that you have an audio recording from a platform like Slack, Webex, or Clubhouse, it is imperative that you have a platform that can support search and transcription to facilitate reducing time to evidence. Next-gen tools like DISCO support the file formats audio files are most often stored in and do not charge extra for audio and video transcription. With some legacy tools you have to work with a third-party application that charges a premium for this service.
What should a practitioner do?
My biggest advice is to remember what Clubhouse is. This is not a casual conversation with friends — it’s more like speaking on a panel at a conference where anyone can record and/or take issue with statements. You must be cognizant of what you say and how you say it because this is a public and loosely moderated forum comprised of brilliant people, average folks, and a handful of people looking to gain clicks from painting a comment or sentiment in a bad light. CEOs, interns, partners, and summer associates all must ensure they take an appropriate amount of thoughtful consideration before sharing with the 5 or 5,000 people in a club room.