The use of digital tools or platforms that can make texts, emails, etc. disappear may be an intriguing tool for users who want to maintain privacy. However, the American government fears that these types of services are being misused by public officials in order to conduct secret business and avoid transparency laws.
There have been several unsettled debates as to whether or not these types of platforms should be part of public record in U.S. states. As with most debates, there are people on both sides of the issue. Transparency laws have not been updated and thus they fall behind the fast growth of technology.
Daniel Bevarly, the executive director of the National Freedom of Information Coalition explains, “Those kinds of technologies literally undermine, through the technology itself, state open government laws and policies”. He also states, “they come on top of the misuse of other technologies, like people using their own private emails and cell phones to conduct business”. This is also an area of concern for state officials with ‘private’ social media accounts that are separate from those of their public figure.
Some government officials believe that public employees should be able to communicate freely on any non-government social media platforms and cell phones. They do not believe they should be subject to open record requirements on personal devices.
Kentucky and Arizona lawmakers recently proposed the exemption of all communication from personal devices from “open state record laws”, however, the bill was unsuccessful. A Virginia lawmaker also presented a bill proposing all personal social media records of said state lawmakers would be exempt from disclosure.
Kansas Governor, Jeff Colyer devised an executive order in February that requires his staff to only use official email accounts for all government-conducted business. He also banned the use of private accounts for communication involving any “function, activity, program, or operation that is related to the office.”
Democratic lawmakers in Missouri also introduced a bill that makes personal social media pages and messages sent through some digital platforms, like Confide and Signal, public records if they relate to official business. This specific legislation came as a reaction to a controversy involving Governor Eric Greitens use of the Confide platform. Greitens resigned from his position in June due to several scandals. State Representative Ingrid Burnett was disappointed that the proposed bill did not advance stating, “we need to clarify the expectations because we should not be allowed to conduct state business using invisible ink”.
All of these proposals were captured by SubshineHub; an Associated Press application that tracks government related bills in all 50 U.S. states.
This issue expanded into public view last year when it came out that many of a Missouri governor’s office employees had accounts on Confide. Confide allows messages to disappear right after they are sent and read by the other account. You are not able to save, print, forward, or screenshot any message sent using the app.
Workers under Gov. Greiten have claimed to only use Confide for discussing ‘logistics’ like scheduling matters that were, in their words, ‘insignificant’. Therefore they were not required to be public record. Attorney General Josh Hawley did not find any evidence that the described practices were illegal, however, no messages were recovered.
The Governor’s reasoning for using the app raised suspicions. Questions arose as to why typical ‘insignificant’ conversation would be necessary to conduct through a service that promotes “honest, unfiltered, confidential conversations” instead of a regular platform. Mark Pedroli, Missouri attorney, says “that’s absurd. Nobody switches to a secret burner app to do that”. Pedroli is suing Greitens on behalf of another open government group and is using the case to find out if the former governor, or his aids, used Confide to communicate with donors or other political figures. “One of the motivating factors of this lawsuit is to find out — what could be the worst-case scenario of a governor or elected official using a secretive app like this?”
Pedroli believes that government agencies should ban or highly restrict the use of apps that provide this service and those related to it. Training slides were obtained during the litigation showing that Greitens’ staff were instructed to never send text messages through their government cell phones. This rule is a blatant suggestion to only conduct business on their personal devices.
Government advocates protested the legislation in Kentucky that would have allowed any form of communication to be exempt from disclosure as long as messages were sent through a private, non-government device. This law was modified so that it only exempts “communications of a purely personal nature unrelated to any governmental function”. Advocates continued to openly speak against the law claiming it to be unnecessary because personal communication is already not subject to disclosure.
A similarly proposed bill in Arizona attempted to pass the shielding of all communication that was created, received, or stored on private electronic devices. The bill fell through without a hearing.
Similar privacy concerns and debates came about after Gmail released ‘confidential mode’ which allows a sender to control who can access, print, forward, or copy emails or data within the emails. The application also allows the sender to set a time for a message to expire.
The National Freedom of Information Coalition’s (NFIC) Board President, Mal Leary, wrote a letter to Google stating that these newly added features could assist in the “illegal destruction of public records”. He also noted that Google services like Gmail are commonly used by government workers. Leary suggested that Google disable this feature for any email account that is linked to a public agency. Google responded stating a user can choose to disable the feature themselves. They also stated that ‘expired’ messages will still be available in the users sent folder, as well as the recipient’s inbox with just the header subject line.