The use of encrypted communications applications across government is on the upswing, though such communications are still privy to sunshine laws.
Two Republican members of Congress are calling on the Environmental Protection Agency’s inspector general to investigate use of encrypted chat applications like Signal among the agency’s employees.
Rep. Lamar Smith, R-Texas, who chairs the House Committee on Science, Space and Technology, penned a letter Tuesday to EPA IG Arthur Elkins, Jr. with Rep. Darin LaHood, R-Ill., chairman of the Subcommittee on Oversight, calling for the investigation following several media reports on encrypted chat use at EPA.
“According to media reports, a group of approximately a dozen career EPA officials are using an encrypted messaging application, Signal, to discuss potential strategies against any attempts by newly appointed political officials to redirect the EPA’s priorities in ways that depart from initiatives spearheaded by Obama administration appointees,” the letter states. “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.”
As Nextgov has previously reported, the use of encrypted communications applications across government is on the upswing, though such communications are still privy to sunshine laws. Under the Federal Records Act, federal employees carrying out official government business using encrypted chat apps are still expected to archive those conversations and make them available, yet enforcement is challenging.
This proved true in December, when an EPA IG report—also requested by Smith—found the agency only able to archive 86 of 3.1 million standard text messages made on government-issued devices from July 2014 to June 2015.
However, the IG found employees did not intentionally violate the laws. Encrypted chat applications add another layer of complexity to the gray area between First Amendment rights and complying with open records laws.
“Over the past few years, we have seen several examples of federal officials’ circumventing Federal Records Act requirements and transparency generally,” the letter states. “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 FOIA and congressional requests unattainable.”