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INSIGHT: De Blasio’s Use of Encrypted App Sparks Legal Concerns

March 26, 2020, 8:01 AM

Good government advocates and legal experts are raising alarms about New York City Mayor Bill de Blasio’s use of Signal, an open source encrypted messaging app that lets users send disappearing messages to one another. The practice has been criticized by U.S. Attorney General William Barr.

This use of such an app raises serious legal and ethical questions about why any elected official would seek to hide his or her communications from the public view. The Signal website states that “Signal messages and calls are always end-to-end encrypted and painstakingly engineered to keep your communication safe. We can’t read your messages or see your calls, and no one else can either. Keep your chat history tidy with messages that you can set to disappear.”

If Mayor de Blasio uses Signal to communicate with his staff or donors about official city business, he may be in violation of records archiving regulations and the state’s Freedom of Information Law, or FOIL.

All public records are subject to disclosure under FOIL. The law requires that “any information kept, held, filed, produced or reproduced by, with or for an agency ... in any physical form whatsoever” must be captured and stored for FOIL requests.

Honoring Freedom of Information Laws

We can take away several lessons from this incident. First, even high-profile politicians should honor the intent of applicable freedom of information laws. In turn, they should avoid using ephemeral communications apps, or at least provide clear explanations about their motives when they do use them.

As technology changes, legal experts need to educate themselves about the changes and stay updated. It’s equally important to keep abreast of changes in the law, including the benefits and risks associated with relevant technologies. The risk of not keeping abreast of changes is overlooking critical communications that can be relevant to a litigation.

Although Barr has not weighed in on de Blasio’s use of the app, in a speech at Fordham Law School in July 2019, Barr argued that such apps must be accessed for investigations. He stated that not allowing law enforcement agencies to open encrypted messages could “jeopardize public safety.”

“Converting the internet and communications platforms into a law-free zone, and thus giving criminals the means to operate free of lawful scrutiny will inevitably propel an expansion of criminal activity,” Barr said. “If you remove any possibility that cops will be watching a neighborhood, the criminals already in the neighborhood are going to commit a lot more crimes.”

“We regularly expect and often mandate that our companies take steps to ensure their product and services do not impose negative externalities on the public,” Barr added.

Obviously, if Mayor de Blasio’s encrypted messages vanish quickly, that opens up a minefield of concerns about government transparency. Why weren’t those communications made over traditional channels which leave a digital paper trail, such as emails or text messages?

Such concerns create “cynicism and suspicions among the public” that “erode the public trust,” according to Alex Camarda, a senior policy adviser for the good government group Reinvent Albany, who spoke with the New York Daily News. “We don’t think that any elected official should be using an app that does not preserve communications that are subject to the Freedom of Information Law and the records archiving laws,” he said.

Transparency Requires Capturing, Storing Information

Officials at all levels of government—local, state and national—should be prepared to respond to public records requests from their constituents or stakeholders in a timely, transparent manner. Such responsiveness in producing messages is the best way to maintain public support for continued funding of government agencies and services. Encrypting those messages, or making them disappear, is the exact opposite of transparency.

New York City law requires policymakers to save all communications of record, including emails, calendars, appointments, tasks and related attachments. Such electronic communications must be easily accessible, indexed, and stored on non-erasable and non-rewriteable media.

Government agencies and large businesses alike should also have the technical capacity to capture all types of messaging data beyond emails, including popular apps such as Facebook, Slack, LinkedIn, Twitter, and text messages.

Lacking the ability to capture and store official messages can result in damaging lawsuits if governments are unable to produce records under local rules, state sunshine laws, or the federal Freedom of Information Act. The resulting penalties can far exceed the cost of investing in a solution to automate records retention.

Archiving official government communications produces greater transparency that is essential to preserving citizen support for the funding of local services. Equally important, taking steps to automate the archiving of emails, social media, text messages and other types of content reflects the core mission of government—to serve the public interest.

When people know their communications are being captured for future retrieval and review, they are much less likely to put things in writing that would embarrass the city or county.

However, when those “things in writing” can be hidden from view or made to magically disappear, it creates a breach of the public trust and violates laws that can lead to unnecessary fines and penalties.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Marianna Shafir is regulatory adviser at Smarsh, a provider of cloud-based information archiving solutions for compliance, e-discovery, and risk management. She has responsibility for legal and regulatory affairs worldwide. Shafir has served as an adjunct professor at New York Career Institute where she taught Law Office Management and Real Estate Law.