FINRA Regulatory Notice 11-39 notes that the Securities Exchange Act requires firms to retain records of communications that relate to its business. Whether a communication is related to the business of the firm depends on the facts and circumstances, but it does not depend on the type of device used to transmit the communication, said Price.
Stephen Marsh, founder and CEO of Smarsh Inc., an electronic communications archiving provider, said the message of FINRA Regulatory Notice 11-39 notice is clear: It’s the content that ultimately determines whether a message is a qualifying business communication.
“The medium is irrelevant,” Marsh said. “If a message is business-related, it doesn’t matter if it’s a text message from your personal phone, an email from a company laptop or a tweet from your personal tablet — you must retain, retrieve and supervise.”
FINRA 11-39 adds more context and detail regarding social media communication, and clarifies some of the questions around mobile devices, Marsh said. With a significant focus on policy and training solutions that have emerged since Regulatory Notice 10-06, Marsh said firms should read Notice 11-39 and ensure that social media policies align to FINRA’s recommendations