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Memo to Future Historians of the Trump Presidency: Good Luck. You’ll Need It.

BY DAVID SNYDER —Tucked into a February 13 Washington Post article about internal chaos at the White House is a stunning sentence, slipped in almost as an aside:

White House “[s]taffers, meanwhile, are so fearful of being accused of talking to the media that some have resorted to a secret chat app — Confide — that erases messages as soon as they’re read” (emphasis added).

The fact that the White House is permanently destroying records of communications, and doing so automatically, should be major news.  Like all federal officials, the President and his staff are required to retain records, for the obvious reason that the public cannot see that which does not exist.  If news broke that the White House had stationed paper shredders in every office, and was using them to automatically destroy all paper communications, there can be little doubt the media would have been apoplectic.  

But aside from a few scattered mentions in the press, the White House’s use of “disappearing message” apps like Signal or Confide got virtually no attention.

Why?

A few theories. First, the Trump White House has been a geyser of aberrant behavior, and its approach to transparency has been no exception.  (See, e.g., Trump’s failure to release his tax returns; his refusal to release White House visitor logs; his failure to provide the press and public with sufficient “readouts” of meetings with foreign leaders, etc.)  There is only so much news the press can handle on any given day; the use of Confide in the White House may have just gotten lost in the flood.  

Second, journalists are big fans of encryption technology as a way to protect confidential sources.  I suspect there was some reluctance on the part of the media to direct too much attention to a practice on which they themselves rely.  (Note that the Washington Post story block-quoted above mentions the use of Confide specifically–and solely–in the context of “talking to the media.”) The problem with this approach is that if White House officials are using Confide to talk to the press, it’s virtually certain they are using Confide to talk to others — themselves, other federal officials, agents of foreign powers (Russia?).

Third, and maybe most importantly, we have all become accustomed to, and accepting of, technology that fosters confidentiality in our private communications.  Encryption is the word of the day for journalists, sources, and others — for good reason.

But communications by government officials about government work are, by definition, not “private” communications–regardless of the medium by which those messages are transmitted.  (One exception would be confidential communications between journalists and their sources, which receive limited protection from disclosure under the First Amendment, and more robust protection under various state shield laws.)

The law — and, I would argue, the public more broadly — has been slow to recognize that the medium is irrelevant when it comes to public records.  The California Supreme Court recognized only this year that government communications on personal email addresses are subject to the California Public Records Act.  At least one federal court has held that the same principal applies under the federal Freedom of Information Act — but, again, only within the last year.

So, I suspect there is a sense among many (journalists included) that communications on a “private” app by government officials aren’t really subject to the same rules that might apply to communication by way of paper memo, or even government-owned email account.  Not so.  The office of the President, like all federal agencies, is required to retain all of its records, irrespective of medium of transmission.  

Part of what’s happening here is a topic I have addressed previously: the privatization of public access.  Not only are many public records held (sometimes exclusively) by private companies (Gmail, Signal, Twitter, etc), but the laws that provide us with access to public records are being overwhelmed by public-records requests made by private entities with the sole purpose of increasing private profits.  Indeed, in many instances taxpayers are subsidizing this private exploitation of FOIA: fees charged to private requesters typically amount to only a fraction of the amount of money it costs the government to collect those records.

But it’s absolutely critical to the people’s ability to understand what their government is up to–and to thereby hold it accountable–that the storage, creation, or maintenance of public records on private platforms does not change the fundamental nature of those records.  They belong to the people.  A public record is a public record.  There is no “Gmail exception” to the California Public Records Act or the federal Freedom of Information Act.  There is no “Signal exception” to the Presidential Records Act.

David Snyder, a lawyer and journalist, is executive director of the First Amendment Coalition. The views expressed here do not necessarily reflect the opinions of the FAC Board of Directors.

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