Gaining insight into the White House has always been a difficult task, even for journalists on the inside. Seasoned journalists have admitted to the difficulty of procuring such sensitive information. Veteran journalists have shared their struggles and even encouraged other struggling journalists to look outside the typical press conferences in order to obtain the information consumers desire. These types of struggles have created a new forum for journalists to communicate with their “sources.”
Confide is an application that encrypts messages end-to-end, meaning only the sender and recipient can read the content of the message. It uses its own encryption protocol that has been growing in popularity due to the growing concerns of database hacks and leaks. By default, Confide deletes messages as soon as they are read, or after a short period of time has elapsed. After a message has been read, it is simultaneously deleted from Confide’s servers as well as wiped from the device. Confide’s encryption is closed source and proprietary meaning no one outside the company knows what’s going on under the hood of the app. This type of security allows for anyone to communicate without a threat of being persecuted for the information conveyed in a conversation. While the creation of Confide was to promote secret personal communication, there are multiple legal implications when this type of communication is engaged in by prominent public officials.
While Confide is the most popular app used by public officials, no matter what the method, encrypted chat appears to have become a staple among political operatives, which raises a host of legal questions. Using private messaging applications, such as Confide, for legitimate business purposes, keeping in touch with family members, or simple personal communication, seems well within the bounds of the law. What is troubling about this type of application is the ability to leak vital information to the media.
Statutes such as the Presidential Records Act and the Federal Records Act have been implemented to preserve the communications of Presidential staff and public officials. The Presidential Records Act was created by Congress in 1978 with the purpose of governing official records of Presidents and Vice Presidents and mandated all presidential records be preserved. The Federal Records Act provides the legal framework for federal records management, including record collection, maintenance, and disposition. The Act and its related regulations define federal records, mandate the creation and preservation of those records necessary to document federal activities, establish government ownership of records, and provide the exclusive legal procedures for the disposition of records. David Vladeck, a communications and technology law researcher at Georgetown Law School has criticized the use of secret messaging applications by saying, “the whole point of these statutes is to assure that our nation’s history is neither lost nor manufactured, and the kinds of apps that obliterate the message are completely incompatible with that and at odds with the law.”
Balancing the privacy of an individual with the transparency of government officials is a tough analysis. There is a clear public interest in holding administrations accountable for their actions, which could come from encryption-enabled leaks. However, the challenges arise in preserving the appropriate level of secrecy without creating a black hole, where public records should be.
There is certainly an argument that could be made to promote the use of encrypted applications, such as Confide, by members of the press. Their right to continually report all aspects of an administration is a fundamental one. With the ability to see inside Capitol Hill or the White House can allow them to gain insight that might otherwise be impossible because their sources may fear for their jobs if any leak could be traced back to them. The press would certainly contend that the public has a right to know of everything taking place inside the government, even if it means using secretive forms of communication. Since the public expects the government to always adhere to the laws, access to information of governmental activity should not be prohibited by the government.
While there is undoubtedly a fundamental right for the public to receive information about governmental activities through the press, the way in which this information is obtained, is of the utmost importance. If government officials are using encrypted applications to communicate with the press it creates an appearance of misconduct. Why would an official seek out an application that deletes the entirety of a message if they are not sharing sensitive or secretive information? With the ongoing concerns of governmental transparency, applications such as Confide certainly go directly against that notion. By adhering to the guidelines provided by the Presidential Records Act and the Federal Records Act, citizens are ensured that all government actions are adhering to the law and if they are not, there will be proper documentation if prosecution arises.
With the ever-growing concerns of internet database hacks and undocumented leaks within the government, there is a large area in need of regulation. Government officials should be held to a high standard of transparency and abiding by the appropriate laws. With the availability of secret messaging applications there is a venue around these lawful actions. It is imperative for legislators to take this type of unlawful into account when reviewing the current regulations of governmental communication.
Source: https://www.wired.com/2017/02/white-house-encryption-confide-app/
This author has chosen to remain anonymous.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
