Some Lawmakers Concerned About Encrypted Messages that Self-Delete

    Apr 11, 2017

    On Capitol Hill concern is mounting about the way many federal officials are using encrypted messaging, personal e-mail accounts, and social media to communicate – and whether those means are eluding federal records laws.

    As reported on FederalNewsRadio.com, four seniors lawmakers wrote letters to the National Archives and Records Administration (NARA) and White House general counsel Donald McGahn asking for details on how the Administration is ensuring no record is lost.

    Sens. Claire McCaskill (D-Mo.), ranking member of the Homeland Security and Governmental Affairs Committee, and Tom Carper (D-Del.), requested answers from Archivist David Ferriero about his agency’s contact with the White House and any guidance it provided.

    “NARA considers President Trump’s tweets as presidential records that need to be preserved for historical purposes. Has NARA made a determination of whether the Trump administration must also preserve altered or deleted tweets?” the senators wrote.

    Reps. Jason Chaffetz (R-Utah), chairman of the Oversight and Government Reform Committee, and Elijah Cummings (D-Md.), ranking member of the committee, asked McGahn about policies on the use of official text message or other social media platforms to conduct official business and the recordkeeping procedures that go with those policies.

    “Provide a detailed accounting of any training on the Presidential Records Act provided to White House personnel, including the dates and attendees of each training and all materials for such training, as well as whether trainings include a discussion of presidential records created when White House business is discussed on electronic messaging platforms or personal email accounts,” the lawmakers wrote.

    The action stems from a reported increase in the use of mobile apps such as Confide, which deletes messages after they are read by the receiver, or other encrypted platforms to share sensitive data or guard against leaks.

    Patrice McDermott, executive director of Openthegovernment.org, said encrypted apps are very concerning but also a conundrum for the open government community.

    “Our community is pulled in two ways on this. It could be both and not either/or because for the leaks that we are getting from agency whistleblowers, these apps are really important to have,” McDermott said. “But part of issue is going to be—and it may have to be litigated—is what is official business? What qualifies as the business of government? If you are blowing the whistle on waste, fraud and abuse and relying on information gained from your government employment and you use one of these apps, is that a violation of federal or presidential records or is it protected First Amendment speech?”

    McDermott said NARA and the Office of Management and Budget have given agencies new guidance on using e-messaging apps in compliance with the Federal Records Act.

    In July 2015, NARA issued the Guidance on Managing Electronic Messages, which tells how agencies can most optimally deal with “text messaging, chat/instant messaging, messaging functionality in social media tools or applications, voice messaging, and similar forms of electronic messaging systems.”

    According to the guidelines: “Employees create Federal records when they conduct agency business using personal electronic messaging accounts or devices. This is the case whether or not agencies allow employees to use personal accounts or devices to conduct agency business. This is true for all Federal employees regardless of status. This is also true for contractors, volunteers, and external experts.”

    NARA says a federal official using a personal account must send a copy of the message to an official government account or forward a copy within 20 days to the agency’s e-messaging account.

    Emily Manna, of Openthegovernment.org, said the Presidential Records Act requires the Administration to have a lawyer or expert advising White House counsel on records management and retention. President Trump has named 26 lawyers to work in the counsel’s office. It’s unclear whether any will focus on records management issues.

    “For federal records, NARA is clear on what to do with electronic messages, but maybe there needs to be clearer guidance on presidential records, or NARA needs to indicate that these rules apply to presidential records too,” Manna said.

    According to McDermott, the 2015 NARA guidance didn’t address platforms such as Confide where messages are automatically deleted.

    In January, NARA issued a proposed rule clarifying that while the agency maintains e-records for the sitting commander-in-chief, the president has “exclusive control over the records” during that term, and has a constitutionally based privilege to stop the public disclosure of a particular record, even after the term is over.

    The Washington Policy Brief is an online advisory that contains brief summaries of recent legislative and regulatory issues that may affect the records and information management profession. Further information about the issue is accessed by clicking on the link provided at the end of each summary.


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