Self-destructing messages won’t fly in government

Self-destructing messages won’t fly in government

Are White House staff playing fast and loose with the Presidential Records Act by using an app that both encrypts and deletes chat messages after they are read?

According to a news report on Axios, “numerous senior GOP operatives and several members of the Trump administration” have downloaded the Confide app, which uses end-to-end encryption so that only the sender and recipient can read them.

“Confide messages self-destruct,” the company states on its website.  “After they are read once, they are gone. We delete them from our servers and wipe them from the device. No forwarding, no printing, no saving … no nothing.”

The dangers of deleting official communications should be obvious to anyone in government.

“Essentially, we just had an entire investigation about this exact issue if you think about it,” said Neil Eggleston, who served as White House Counsel during the Obama administration. “Secretary [Hillary] Clinton used a non-official email account for her State Department activities, and there were significant investigations by the Republican Congress of that activity with conclusions that that was inappropriate and claims that she deleted materials in violation of the Presidential Records Act."

“I don’t see how this would be any different,” he said of the possibility of administration offiicials using Confide.

The Presidential Records Act was passed in 1978 after the Watergate crisis and mandated the preservation of all presidential and vice presidential records and established a new statutory structure for how those records must be managed. As a result, records can’t be destroyed without permission of the Archivist of the United States, according to PRA guidelines produced by the National Archives and Records Administration.

Now almost 40 years later, technology is raising more questions about what qualifies as a record and what can be disposed of. Eggleston told GCN that it’s not just paper documents that fall under PRA, but any document that relates to the official work of the presidency, including email, text messages, and in-app communications (whether via internal, approved apps or commercial services like Twitter).

And it’s not just the format or platform that defines official communications. Aaron Mackey, a legal fellow at the Electronic Frontier Foundation, said compliance with the PRA also depends on what staff members are talking about.

“It’s unclear to me whether these individuals -- assuming the report is right [that] they’re using a particular messaging app -- are discussing personal matters or if they’re discussing government business, creating documents and records that should be preserved,” he said. “If they are discussing government records and business … that does raise some concerns about whether or not records of the current administration are being preserved as required by the Presidential Records Act.” (Similar questions were raised in late January when Newsweek reported that key White House staff had email accounts on a Republican National Committee-managed system.)

Mackey said both he and EFF are generally advocates for encryption, but when statutes set rules for archiving communications, they should be followed to allow for transparency and proper recordkeeping.

While serving in the Obama administration, Eggleston said he told staff members to use their official White House email (he joined the team after Hillary Clinton left her position as secretary of State). If members of the administration use their official email, then they’re automatically in compliance with the PRA because of the automatic archiving process that is in place. But another administration could do something different and still be compliant, he said.

“I’m not sure the Presidential Records Act cares what system is used to transmit messages, but the Presidential Records Act does require that they be retained,” he said.

The Axios report quoted an anonymous source who said White House staff members were using the app out of fear of hacks and leaks like those that rocked the Democratic National Committee.

Eggleston said he didn’t know how the White House email security stacked up to apps like Confide, but said “there are significant protections for the White House email account that are much more significant” than what’s used in commercial email services.

About the Author

Matt Leonard is a former reporter for GCN.

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