Secret messaging raises public records concerns
By now, most social media-savvy consumers are familiar with Snapchat, the smartphone app that features photos that disappear as soon as the recipient views them. It was only a matter of time before text messaging got the same treatment.
Enter Confide and Signal, two apps that are marketed as ways to keep your messaging safe from prying eyes. That will no doubt be attractive to many in this era of digital thievery and snooping, but it raises real issues if public officials use such tools to evade public records laws.
The apps allow users to send encrypted messages that self-destruct as soon as they are read. If a user attempts to take a screen shot of a message, the app boots him out of the message and notifies the sender. Messages cannot be saved or forwarded.
That seems harmless as long as the messages are personal, but open records laws often require public officials to store electronic communications regarding public business and to produce them on request. That’s not possible with secret messaging apps. And without a record, it’s impossible to know for sure whether the apps are being misused.
State legislatures have been grappling with the implications of this technology. The Confide app recently made the news in Missouri, where Gov. Eric Greitens resigned June 1 amid a cloud of scandal. Under a court order, the governor’s office revealed that most of Greitens’ paid staff had Confide accounts.
Greitens acknowledged that he occasionally used Confide to communicate with staffers about matters such as scheduling “in a manner that was consistent with the requirements of the Open Records Law.”
The problem with that is, if there was nothing to hide, why hide it? As one lawyer representing an open government group put it, “Nobody switches out to a secret burner app to do that.”
Missouri lawmakers introduced a bill that would declare that personal social media pages and digital messages are public records if they relate to official business. The bill languished. One of the bill’s supporters said, “we should not be allowed to conduct state business using invisible ink.”
In Kansas, Gov. Jeff Colyer issued an executive order requiring staff to use official email accounts for government business.
Not every communication between public employees is subject to disclosure, and even elected officials may discuss public business under some circumstances without being subject to public records law. But correspondence, whether by email, the old-fashioned way on paper, or by electronic message, often is required to be archived or recorded.
Secret texting apps make it impossible to determine after the fact whether that communication should have been retained.
Not only that, but the apps allow users to attach video, photos and documents to secret messages. And a group chat function lets multiple users communicate, potentially skirting open meetings laws.
Oregon lawmakers don’t convene again until early next year. They should consider adopting rules for state employees and elected officials alike making it clear that public business should be conducted using only official email accounts, and any messaging that involves official business should be recorded and archived for public inspection.