The Accountability Hole in Public Records

This piece was originally published on E Pluribus Unum.

In 2019, journalists, politicians and pundits shouldn’t be asking whether White House officials should using WhatsApp. If a given encrypted or ephemeral app does not have archiving built in, public servants should not use it for public business, much less in the White House. This is straightforward: WhatsApp, Signal and Confide aren’t approved by USGSA. Apps like these are made for shadows, not sunshine. Officials should be using secure official systems that memorialize messaging.

Unfortunately, that message hasn’t been received in the Trump White House, where senior advisor Jared Kushner, the son-in-law of the President of the United States, is now the poster child for Presidential Records Act reform.

On March 21, the Chairman of the U.S. House Committee on Oversight, Elijah E. Cummings, sent a letter to White House Counsel Pat Cipollone that requested more documents regarding the use of personal email and messaging accounts by non-career officials at the White House “in violation of the Presidential Records Act and White House policy,” after the Committee obtained new information its investigation into potential illegality.

It’s worth pointing out the ways that this is not a new issue, and the ways it is.

While the public may be most familiar with former Secretary of State Hillary Clinton’s use of a personal email server while she served at the State Department, the use of personal devices and private systems over the past decade had already become a widespread problem across every level of government, implicating Democrats, Republicans and civil servants, for both good and bad reasons.

Ephemeral and encrypted apps have now exacerbated the issue, throwing the legal and ethical holes in systems for archiving into stark relief from Kansas to the U.S. Capitol. In an era when we’ve never had so much instant access to information or ability to save it, there’s also an unprecedented number of free, easy-to-use private messaging apps that enable officials to hide secrets, posing new challenges for government transparency.

In February 2017, the National Archives and Records Administration issued guidance on the Presidential Records Act & Federal Records Act to help educate people new to government, Congress, the press and the public what the obligations of public officials are in the White House and federal agencies not long after news outlets reported that White House officials were using encrypted, ephemeral apps.

There’s nothing wrong with government officials using encrypted apps for personal communication. In fact, it’s good risk modeling for senior White House officials, given that their personal devices and communications are likely to be targeted by various foreign intelligence services.

But intentionally conducting public business on systems removes it from public scrutiny unless a given official memorializes it makes it far harder to hold officials accountable for their work on the public’s behalf, should waste, fraud, abuse, or outright criminality occur. That’s a recipe for corruption. Doing it all creates the appearance of corruption at time when public trust in government continues to wallow at historic lows.

As national security lawyer Kel McClanahan highlights, what we face in Washington in 2019 is a crisis of ethics, not technology. At its core, the Presidential Records Act is an honor system. Decades ago, Congress assumed a President would voluntarily comply with the law but, once again, Donald J. Trump’s administration has exposed an accountability hole.

“Presidential records are the property of the American people,” said Lisa Rosenberg, executive director of OpenTheGovernment, in a statement.

“Given the track record of this White House officials’ use of personal messaging accounts, Congress cannot afford to ignore civil society’s call for a real enforcement mechanism to deter actions that violate the PRA. Right now, there is no incentive for officials to follow the law, because there is no way to hold anyone accountable for violations. Congress must hold substantive hearings to determine how best to curb this rampant problem, and the White House must issue a public statement about how it plans to effectively address this pattern of PRA violations by its own officials.”

The proper response to this challenge to basic good governance will not be found in this White House nor down the street at the National Archives, where open government endures but the Archivist of the United States does not have the power to compel this president to cease destroying records.

It will be when Congress enacts a bill like the Electronic Message Preservation Act (H.R. 1582) which explicitly mandates “the preservation of certain electronic records by Federal agencies” would “require a certification and reports relating to Presidential records.”

“Trust but verify” is not a tenable oversight strategy for this administration. Indeed, it never has been.

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