Encrypted messaging apps promise privacy. Government transparency is often the price

In the age of smartphones, encrypted messaging apps have become a staple for many individuals, promising increased security and privacy. However, their widespread use has also raised concerns about government transparency, as these same apps often skirt open records laws meant to increase public awareness and accountability.

The Rise of Encrypted Messaging Apps

States and cities across the country are grappling with how to stay on the right side of government transparency laws as the use of encrypted messaging apps becomes more widespread. A devastating wildfire burned through a Maui town, killing over 100 people, and emergency management employees traded dozens of text messages, creating a record that would later help investigators piece together the government's response to the tragedy.

One text exchange hinted at officials 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, referencing one of many end-to-end encrypted messaging apps that include message auto-delete functions.

The Challenge of Transparency

While such apps promise increased security and privacy, they often skirt open records laws meant to increase transparency around 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. 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.

Balancing Security and Transparency

The challenge of staying on the right side of public information laws while using encrypted messaging apps is a growing concern. Matt Kelly, editor of Radical Compliance, said, "The fundamental problem is that people do have a right to use encrypted apps for their personal communications, and have those on their personal devices. That's not against the law."

However, how can an organization distinguish between an employee's personal use of these apps and government business? The U.S. Cybersecurity and Infrastructure Security Agency (CISA) has recommended that "highly valued targets" — senior officials who handle sensitive information — use encryption apps for confidential communications.

Real-World Examples

In 2020, the New Mexico Child, Youth and Families Department's new division director told employees to use Signal for internal communications and delete messages after 24 hours. However, this practice was followed by a court settlement with two whistleblowers and the division director's departure.

Michigan lawmakers responded by banning the use of encrypted messaging apps on state employees' work-issued devices if they hinder public record requests. While Michigan's law did not include penalties for violations, it marked an effort to address this growing concern.

Finding a Balance

Governing bodies face the daunting task of finding a balance between security and transparency in their use of encrypted messaging apps. David Cuillier, director of the Brechner Freedom of Information Project at the University of Florida, said, "The best remedy is 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, but many lack teeth. Governments could create independent enforcement agencies, add punishments for violations, and create a transparent culture that supports technology.

In conclusion, encrypted messaging apps have become an integral part of our personal and professional lives. However, their widespread use has raised concerns about government transparency, as these same apps often skirt open records laws meant to increase public awareness and accountability.

Governing bodies must find a balance between security and transparency in their use of these apps. By implementing stronger public record laws, creating independent enforcement agencies, adding punishments for violations, and fostering a transparent culture that supports technology, governments can ensure that they are serving the public interest while also protecting sensitive information.