Cecily Zamora
The use of encrypted messaging apps has become increasingly prevalent, with federal agencies urging high-level US officials to switch to these platforms for secure communication. This shift is driven by concerns over cyberattacks and hacking incidents targeting telecommunications companies and government officials. While encryption enhances privacy and security, it also presents challenges for law enforcement agencies, who require access to digital evidence during investigations. The relationship between federal agencies and tech companies regarding encryption has been contentious, with debates surrounding the creation of backdoors for law enforcement access. Federal employees must also navigate legal complexities when using encrypted apps for official business, ensuring compliance with open records laws and archiving requirements.
| Characteristics | Values |
|---|---|
| Encrypted communications | Relatively new technology |
| Federal employees' use of encrypted apps | Covered by Freedom of Information Act and open-records laws |
| Federal employees' use of personal devices | Protected speech |
| Federal employees' use of government-issued devices | Less clear legal ground |
| Archiving requirements | All forms of messaging are subject to archiving |
| Sunshine laws | Apply to encrypted messages |
| Encryption and federal law enforcement | Complicated relationship |
| End-to-end encryption and federal law enforcement | Poses a problem for investigations |
| Encryption and user trust | Critical for companies to maintain trust |
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What You'll Learn
- The use of encryption by federal employees is safer but legally murky
- Open records laws dictate how federal employees conduct official business
- Freedom of Information Act and other open-records laws apply to encrypted communications
- Sunshine laws: encrypted messages should be archived like other forms of communication
- The FBI has a complicated relationship with encryption technology, advocating against full encryption
The use of encryption by federal employees is safer but legally murky
For federal employees, encrypted communications fall under the Freedom of Information Act and other open-records laws. This means that regardless of whether official government business is conducted on government-issued or personal devices, records must be captured and managed in compliance with federal regulations.
The legal ground becomes murkier when considering the use of encryption for protected speech. While private citizens speaking on matters of public concern is protected, the law is less clear when it comes to encrypted speech made on government-issued devices. Federal employees using encrypted apps must be cautious, as their devices and privacy may be at risk.
To ensure compliance with archiving requirements, federal employees are advised to use the archival functions within encrypted communications apps or consider alternative methods such as taking screenshots of communications. By properly archiving their communications, federal employees can navigate the legal complexities surrounding the use of encryption.
In conclusion, while encryption provides enhanced security for federal employees, it is essential to be aware of the legal implications and take appropriate steps to ensure compliance with open records laws and archiving requirements.
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Open records laws dictate how federal employees conduct official business
Federal employees should be aware that the use of encrypted apps may constitute a grey area in terms of legality. Open records laws, such as the Freedom of Information Act (FOIA), dictate how federal employees conduct official business, and these laws apply to encrypted communications as well. According to FOIA, federal agencies are required to disclose any requested information unless it falls under one of the nine exemptions, which protect interests such as personal privacy, national security, and law enforcement.
Federal employees must understand that their electronic messages, including encrypted ones, may be subject to archiving requirements and open records laws. This means that even if they are using their own devices and personal accounts, they must ensure proper archiving and compliance with federal records management laws, regulations, and policies. The National Archives Records Administration (NARA) has issued guidance stating that "agencies must capture and manage these records in compliance with federal records management laws, regulations, and policies."
Additionally, federal employees should use agency accounts for electronic messages, including texts, chats, and emails, when conducting agency business. If personal or non-official accounts are used in exceptional circumstances, federal employees must copy or forward the records to an official electronic messaging account within 20 days. This is to ensure that federal records are properly preserved and accessible.
It is important to note that federal records are all recorded information, regardless of form or characteristics, made or received by a federal agency in connection with the transaction of public business. These records must be preserved as evidence of the organization's functions, policies, decisions, and other activities. Federal employees should consult with their agency records officer to determine the most effective way to manage their electronic messages and ensure compliance with open records laws.
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Freedom of Information Act and other open-records laws apply to encrypted communications
The Freedom of Information Act (FOIA) has provided the public with the right to request access to records from any federal agency since 1967. The FOIA is often described as the law that keeps citizens informed about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of the nine exemptions that protect interests such as personal privacy, national security, and law enforcement.
Alex Howard, deputy director of the Sunlight Foundation, stated that encrypted communications fall under the FOIA and other open-records laws. Howard emphasized that the critical consideration is whether official government business is being conducted, regardless of the device used. Federal employees must be aware of the legal implications of using encrypted apps, as open records laws dictate how they conduct official business.
The FOIA includes specific provisions, known as "exclusions," that offer special protection for law enforcement and national security records. The first exclusion protects the secrecy of ongoing criminal investigations when disclosure could interfere with proceedings. The second exclusion safeguards the existence of informant records that have not been officially confirmed. The third exclusion is specific to the Federal Bureau of Investigation, protecting the existence of records related to foreign intelligence, counterintelligence, or international terrorism when classified.
It is important to note that the FOIA authorizes agencies to withhold information when disclosure could reasonably be expected to cause harm to interests protected by the exemptions. Agencies should also consider the possibility of partial disclosure when full disclosure is not feasible. The Office of Government Information Services (OGIS) provides mediation services to resolve disputes between requesters and agencies, promoting compliance with the FOIA.
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Sunshine laws: encrypted messages should be archived like other forms of communication
Sunshine laws, also known as the Government in the Sunshine Act, are regulations that require transparency and disclosure in government or business. These laws make government records, such as meeting notes, recordings, and text messages, available to the public to ensure open and ethical conduct. With the evolution of technology, electronic forms of communication, including texting, have become commonplace in government institutions.
According to Alex Howard, deputy director of the Sunlight Foundation, encrypted communications fall under the Freedom of Information Act and other open-records laws. He emphasizes that the critical issue is whether official government business is being conducted, regardless of the device used. Federal employees must be cautious when using encrypted apps due to the sometimes murky legal ground regarding open records laws.
To comply with Sunshine laws, it is essential to treat encrypted messages like other forms of communication. Agencies and officials must implement mechanisms to archive electronic messages, including encrypted ones. This ensures that all records are stored in a searchable and accessible manner for the public. Proper archiving of encrypted messages can be achieved through the archival functions within encrypted communications apps or alternative methods such as taking screenshots.
By adhering to archiving requirements, federal employees can ensure they are complying with Sunshine laws and providing transparency in their conduct of official government business. The specific regulations may vary from state to state, and it is essential to refer to the relevant state-specific Sunshine laws and guidance.
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The FBI has a complicated relationship with encryption technology, advocating against full encryption
The Federal Bureau of Investigation (FBI) has had a complex and evolving relationship with encryption technology. While the FBI recognises the importance of encryption for national security and the protection of sensitive information, it has also advocated against full encryption, citing concerns about criminal investigations and public safety.
In recent years, the FBI has warned that the increasing use of end-to-end encryption poses a challenge for law enforcement. In certain cases, investigators believe that significant evidence may be stored on electronic devices, but they are unable to access this information due to encryption. This has reportedly impacted their ability to identify, stop, and prosecute offenders, including in cases related to child molestation, human trafficking, and murder.
The FBI's stance on encryption is that it supports the wide and consistent use of "responsibly managed encryption". They want technology providers to be able to decrypt and provide data to law enforcement when presented with a legal order, such as a court order or warrant. This position aims to balance the need for data privacy and security with the requirements of criminal investigations.
However, the FBI's approach has not always been consistent. In 2016, the FBI attempted to compel Apple to backdoor an iPhone, which Apple refused, citing the security of its iOS system. During the Trump administration, there were efforts to rebrand encrypted communications as "law-free zones" and even discuss potential bans on "unbreakable" consumer security measures. These actions caused concern among privacy advocates and technology companies.
Despite the complexities, federal agencies have recognised the importance of encryption in specific contexts. In 2024, the Cybersecurity and Infrastructure Security Agency (CISA) urged high-level government officials and politicians to use end-to-end encrypted communications due to concerns about Chinese hackers targeting U.S. telecommunications systems. This guidance highlights the delicate balance between national security and the need for law enforcement access to data.
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Frequently asked questions
Federal employees should be aware of the legal ground they’re entering when using encrypted apps, as their devices and privacy are at risk. Encrypted communications fall under the Freedom of Information Act and other open-records laws, so federal employees must ensure they are complying with federal records management laws, regulations, and policies. It is recommended that federal employees use the archival functions found in most encrypted communications apps.
Examples of encrypted apps that feds can use include Signal, WhatsApp, and ProtonMail.
The FBI has a complicated relationship with encryption technology. They have historically advocated against full end-to-end encryption that does not allow them access to digital material even with a warrant. However, they have also supported forms of encryption that do allow for some law enforcement access in certain circumstances.
