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Encrypted apps spark new questions for Trump-era workers

The reported use of encrypted messaging apps by government workers is raising questions about whether the services evade scrutiny from their superiors and the public – or are even legal.

Trump administration staffers are reportedly communicating via an encrypted messaging app called Confide, the main feature of which is self-destructing messages.

Axios originally reported last week that top GOP operatives and aides in the administration have been using the app to communicate out of fear that they might be hacked and have their correspondence made public.

And The Washington Post reported this week that, amid the fallout of national security adviser Michael Flynn's resignation, White House staffers are using Confide out of fear that President Trump is planning to crack down on leaks to the media.

House Republicans are also seizing on reports that federal workers are using encrypted messaging apps to avoid being monitored by their supervisors.

House Science Committee Chairman Lamar Smith (R-Texas) and Rep. Darin LaHood (R-Ill.), the panel's oversight chair, wrote a letter to the Environmental Protection Agency's inspector general calling for an investigation into the use of messaging apps like Signal, which Politico reported earlier this month was being used among a group of agency employees.

"Reportedly, this group of career officials at the EPA are aiming to spread their goals covertly to avoid federal records requirements, while also aiming to circumvent the government's ability to monitor their communications," the letter reads.

"Over the past few years, we have seen several examples of federal officials' circumventing Federal Records Act requirements and transparency generally. In this instance, the Committee is concerned that these encrypted and off-the-record communication practices, if true, run afoul of federal record-keeping requirements, leaving information that could be responsive to future Freedom of Information Act (FOIA) and congressional requests unattainable."

Government accountability watchdog groups are raising similar concerns about the use of Confide in the White House, saying it violates the Presidential Records Act. The 39-year-old law requires the president, vice president and their immediate staff members to preserve all correspondence so that official records can be archived.

"The reason we have to have an archived record is so there's accountability for the actions and decisions that get made and historically we can review the activities of an administration," said Sean Moulton, who oversees the open government program at the Project on Government Oversight.

"If you don't want that kind of paper trail then it raises serious questions about the discussions and the decisions that are being made," Moulton added.

Conservatives have expressed alarm over the reports that new technologies might be used to evade records.

Judicial Watch president Tom Fitton said that if the reports turned out to be true, he believes that White House staff using Confide to cover up leaks would be illegal and "wildly irresponsible."

"You can't on the fly delete records because you don't think they're government records," Fitton said. "And in the end, the president is responsible for this and he needs to make sure the rules are being followed."

Fitton and his group are known for hounding the Clinton family, especially over Hillary Clinton's use of a private email server while she was secretary of State. According to a New York Times report from October, Judicial Watch has more than 20 active lawsuits involving Clinton.

The Presidential Records Act does allow for the White House to dispose of correspondence that does not qualify as official business, but only after consulting with the Archivist of the United States to determine whether the materials have historical value.

In the case of the EPA, career officials were using the encrypted messaging app Signal to discuss their concerns about the direction of the department under the new administration.

Rep. Don Beyer (D-Va.), who also sits on the House Science panel with Smith and LaHood, said that the Politico report did not show that the EPA employees were trying to evade federal records laws.

"I think there is a lot of fear in government right now," he said.

Unlike Confide, Signal does not by default automatically erase messages after they have been received.

Because of that, the use of Signal is not in itself a violation of the Federal Records Act, a law that is similar to the Presidential Records Act and governs executive branch agencies.

Employees are allowed to have private messaging accounts for use in personal matters, but if they conduct official business in a medium other than their official email account, they are required to forward or copy those messages to their work account.

"The law is pretty clear that, no matter how you are creating records, it's not the medium that matters," said Adam Marshall, the Knight Foundation Litigation Attorney at the Reporters Committee for Freedom of the Press.

"How else would a [Freedom of Information Act] officer know they are looking at all of the information?"

Beyer suggested that there is a double standard with the two cases.

"The federal law should be obeyed – whether the EPA, the executive branch or anyone else," he said. "But at a minimum, the executive branch should be held to the standard of the EPA."

[Source: By Harper Neidig and Joe Uchill, The Hill, Washington, 17Feb17]

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