Lawsuit seeks records of EPA workers' use of encrypted messaging app

Cause of Action Institute (CoAI), a nonprofit, nonpartisan Government accountability organization, filed a lawsuit this week seeking to force the Environmental Protection Agency (EPA) to release records of workers using an encrypted instant messaging application to discuss government business. This follows a Freedom of Information Act (FOIA) which was previously submitted to the EPA but resulted in no appropriate response or relevant documents. In their press release, Assistant Vice President Henry Kerner described the lack of transparency at the EPA and the problems this is causing.

“Career employees at the EPA appear to be using Signal to avoid transparency laws and vital oversight by the Executive Branch, Congress, and the public. Communications on this encrypted application, however, which relate to agency business must still be preserved under the Federal Records Act and be made available for disclosure under the FOIA. Taxpayers have a right to know if the EPA’s leadership is meeting its record preservation obligations.”

According to media reports, at least a dozen EPA career employees have been using Signal to communicate about work-related issues, including how to prevent President Trump’s political appointees from “undermin[ing] their agency’s mission to protect public health and the environment” or “delet[ing] valuable scientific data.” CoA Institute’s investigation into this matter has been widely discussed in the press, along with Congress’s request for the EPA’s watchdog to independently investigate the matter. To date, the EPA has failed to issue a timely determination on CoA Institute’s FOIA request, let alone produce any responsive records.

The application in question is known as Signal. It’s a product of Open Whisper Systems which produces Signal as part of their efforts to provide secure communications and protection from prying eyes. Particularly if there are government employees using this application, it’s all the more interesting to note that on their front page they conspicuously list the following endorsement.

Given all the relevant history I’m not sure that Edward Snowden is the spokesperson you want endorsing a product which is floating around the halls of the federal government.

I do have some questions about this lawsuit and CoAI’s investigation. First of all, are these communications which are taking place on the EPA workers’ business phones or on their private cell phones? If the latter, I’m already getting a nervous feeling about this, but it relates directly to the next question to be answered.

There is no doubt that the public is entitled to be aware of the actual work being done by federal agencies and this can often include their internal communications. (That’s assuming that the exposure of such information would not endanger national security, a situation which seems rather unlikely with the EPA.) But the description provided in the lawsuit seems to specifically suggest that these were discussions taking place between EPA employees about what they should do in response to planned cuts and other changes which are expected under the Trump administration. Is that actually part of their “work” as it relates to their jobs? If we’re talking about instant messages being sent back and forth between staffers who may be trashing their new boss or concerned over the possibility of losing their jobs, are those sorts of notes part of the government record and subject to public scrutiny? Don’t get me wrong… I’m all in favor of the proposals that President Trump has made regarding the EPA. But if these are just workers gossiping amongst themselves, I’m not sure if government transparency rules actually apply.

This entire affair is also yet another reminder of precisely how difficult it is to monitor the communications of government officials in the digital era. Back in the bad old days when memos, letters, directives and reports were all printed on paper, distributed and archived, it was easy enough to keep track of things. Once we moved into the era of email the situation became more tricky because everyone has their own email account in addition to the “official” one provided on their government systems. How do you keep track of what these workers are talking about in their free time, and should you? Now that we are adding instant messaging and social media apps into the mix the task appears virtually impossible. What will CoAI be able to get in response to this request? I’m wondering if anyone would actually be able to crack the encryption and retrieve the messages. Or would we just be seeing a list of workers who downloaded the app but not have any idea what they were chatting about?

If any of these records which are presumed missing are, in fact, directly related to the work being done at the EPA, then by all means we should be able to get a look at them. I’m just not entirely sure that instant messages saying what a jerk the new president is qualify.