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Coalition Warns of Legal Risk in WhatsApp Use in D.C. Government, Urges Mayoral Ban

Fritz Mulhauser | November 8, 2019

The D.C. Open Government Coalition has asked D.C. Mayor Muriel Bowser to immediately prohibit District of Columbia government employees from using private text messaging services to conduct any official business.

In a November 6 letter, Coalition President Thomas Susman warned that the WhatsApp software handles messages with technology that makes it impossible to archive them as public records or to respond to requests under the D.C. Freedom of Information Act (FOIA) or other legal procedures such as discovery requests or subpoenas in lawsuits.

On its website WhatsApp, which is owned by Facebook, explains to senders, “only the recipient and you have the special keys needed to unlock and read your messages. For added protection, every message you send has an unique lock and key.” Further, “[i]n the ordinary course of providing our service, WhatsApp does not store messages once they are delivered or transaction logs of such delivered messages, and undelivered messages are deleted from our servers after 30 days. WhatsApp offers end-to-end encryption for our services, which is always activated.”

The software is used worldwide for Internet exchange of encrypted messages, now numbering in the billions daily, with users including the White House and military forces on the battlefields of Afghanistan.

Martin Austermuhle’s recent report on WAMU noted that District employees use WhatsApp for discussions of official business. After a FOIA request for such messages was denied, an appeal is pending before the Mayor’s Office of Legal Counsel, according to a knowledgeable official answering a Coalition inquiry to the office.

The new Coalition demand echoes steps taken years ago to clarify the full breadth of what is included among “government records” and to assure contents of all would remain available as new technology platforms proliferated. Then-Mayor Vincent Gray ordered in 2012 that all official emails be exchanged on devices allowing capture of copies. D.C. Council members’ official correspondence on private email accounts also came under requirements for access when the Council settled the Coalition’s 2012 lawsuit challenging a FOIA denial.  

A nationwide review commissioned by the Coalition and published by the American Bar Association in 2017 found the law has steadily increased requirements for access to official government business done in text messages.

The latest Coalition letter gives further examples of costs to governments in time, money and “damaging adverse publicity” for those who choose to fight losing defensive battles to keep secret the records of public business exchanged on such hidden systems.

Susman warned the District to “not wait to be sued before ruling that the D.C. FOIA requires public access to employees’ private text messaging accounts when used for public business.” His letter concludes, “the D.C. Open Government Coalition strongly urges you to immediately prohibit the use of WhatsApp and other text messaging apps by District employees for public business while procedures are developed or solutions are acquired to ensure that any such use results in the forwarding of messages for retention by the government.”

The Coalition letter went to the mayor and other legal and open government officials. None have responded.