Encrypted Messaging Apps Promise Privacy. Government Transparency is Often the Price

While apps like Signal promise increased security and privacy, they often skirt open records laws meant to increase transparency around and public awareness of government decision-making.

A devastating wildfire burned through a Maui town, killing more than 100 people. Emergency management employees traded dozens of text messages, creating a record that would later help investigators piece together the government's response to the 2023 tragedy.

One text exchange hinted officials might also be using a second, untraceable messaging service. "That's what Signal was supposed to be for," then-Maui Emergency Management Agency Administrator Herman Andaya texted a colleague.

Signal is one of many end-to-end encrypted messaging apps that include message auto-delete functions. While such apps promise increased security and privacy, they often skirt open records laws meant to increase transparency around and public awareness of government decision-making.

Without special archiving software, the messages frequently aren't returned under public information requests.

An Associated Press review in all 50 states found accounts on encrypted platforms registered to cellphone numbers for over 1,100 government workers and elected officials.

It's unclear if Maui officials actually used the app or simply considered it – a county spokesperson did not respond to questions – but the situation highlights a growing challenge: How can government entities use technological advancements for added security while staying on the right side of public information laws?

The Government's Use of Encryption Apps

The AP found accounts for state, local and federal officials in nearly every state, including many legislators and their staff, but also staff for governors, state attorneys general, education departments and school board members.

The AP is not naming the officials because having an account is neither against the rules in most states, nor proof they use the apps for government business.

While many of those accounts were registered to government cellphone numbers, some were registered to personal numbers. The AP's list is likely incomplete because users can make accounts unsearchable.

The Problem with Encryption Apps

Improper use of the apps has been reported over the past decade in places like Missouri, Oregon, Oklahoma, Maryland and elsewhere, almost always because of leaked messages.

Public officials and private citizens are consistently warned about hacking and data leaks, but technologies designed to increase privacy often decrease government transparency.

Apps Like Signal

Apps like Signal, WhatsApp, Confide, Telegram and others use encryption to scramble messages so only the intended end-user can read them, and they typically aren't stored on government servers.

Some automatically delete messages, and some prevent users from screenshotting or sharing messages.

The Debate Over Acceptable Government Uses

"The fundamental problem is that people do have a right to use encrypted apps for their personal communications, and have those on their own devices like any other person," said David Cuillier, director of the Brechner Freedom of Information Project at the University of Florida.

But when it comes to government agencies, Cuillier said, "They should only be using apps if they are able to report the communications and archive them like any other public record."

The Need for Stronger Public Record Laws

"Most state laws already make clear that the content of communication – not the method – is what makes something a public record," Cuillier said.

But many of those laws lack teeth, he said. "They should only be using apps if they are able to report the communications and archive them like any other public record,"

The Importance of Government Transparency

"We used to be a beacon of light when it came to transparency. Now, we're not. We have lost our way," Cuillier said.

"To reverse that, governments could create independent enforcement agencies, add punishments for violations, and create a transparent culture that supports technology,"

The Way Forward

Generally, Cuillier said, there's been a decrease in government transparency over the past few decades. To reverse that, governments need to take steps to ensure that their use of encryption apps does not compromise public trust.