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D.C. Law Passed to Curb WhatsApp Misuse in Government Has Expired

Fritz Mulhauser | February 14, 2023 | Last modified: May 7, 2023

UPDATE 5/6/23 The mayor allowed the legislation to become effective April 26 without her signature. The Council transmitted the act to Congress on May 2 for a 30-day review period that is expected to end June 13.

UPDATE 3/7/23 The D.C. Council passed emergency and temporary legislation today by unanimous vote to extend the law making all government officials’ electronic messages public records. The emergency law takes effect (for 90 days) when the mayor signs it. The temporary law (225 days) takes effect when the mayor signs it and it survives a congressional 30-day review period.

UPDATE 3/6/23 D.C. Council Chairman Phil Mendelson announced a bill for tomorrow’s legislative session to extend last year’s action making all government officials’ electronic messages public records. That means they must be preserved and made accessible for FOIA searches and other uses. The chairman announced the step (that the D.C. Open Government Coalition has repeatedly called for) at a legislative press briefing Monday morning, saying “you in the media will like this one.” The bill is B25-0166, introduced by Council member Anita Bonds who chairs the committee overseeing public records. Text available here. If passed, it will give the Council 225 days to enact the permanent legislation that has been needed for years and that may stimulate the executive branch to set policies needed to implement the law.

When a D.C. mayor and a Maryland governor were found to be using disappearing message apps, the D.C. Council decided corrective action was so urgent it passed on a fast track with no hearing, only one round of voting, and no delay for congressional review in March 2022. That law quietly expired Friday (10).

Inquiries recently to Council staff familiar with the subject have not uncovered any signs of action. The Council often extends temporary laws to allow for the hearings and multiple votes required for permanent legislation.

Tech advances beginning a decade ago put powerful tools for secrecy on every phone—to encrypt and erase messages.

As Rolling Stone summarized their usefulness, “For journalists, activists, and government critics who worry about government mass surveillance and political retribution, secure messaging tools can mean the difference between doing their work safely or facing imminent danger.” 

But government officials exchanging work messages on such apps create barriers to later access for audit, response to Freedom of Information Act requests, establishing historical facts, or other official needs. That’s because only the account owner can access messages and only via their registered cell phone.

The Council acted in March last year to make clear communications created or received electronically in the course of official business are subject to existing record-retention obligations and may not be destroyed “in any manner, including through the enabling of settings on electronic devices that allow for the non-retention or automatic deletion of records.”

No further official D.C. government guidance has spelled out practical rules for D.C. officials and employees, such as prohibiting auto-deletion software or providing an easy mandatory message backup system all must use.  

Courts have for years made clear that public records laws typically cover all communications that are government business, no matter what the form or where those are kept (texts or mail, official phone or personal). And public records shall generally be safeguarded and accessible. But new technology posed new questions.

When the Council claimed not to “possess” members’ emails on personal phones, the Coalition sued in 2012 and won a settlement in D.C. Superior Court so messages have been subject to FOIA search ever since. When texts were the main threat and Martin Austermuhle’s reporting showed wide official use in 2013, the Coalition researched this and reported in 2017 they’re covered too. Access frustrations arise under ever-newer technologies when employees say they no longer have the messages or the phone that encrypted them.

The problem had surfaced in the District repeatedly, without action—

  • Cuneyt Dil writing in Axios in February 2022 underscored the loss of District of Columbia official records by use of disappearing message apps. He found “nine current and former staffers or those within the mayor’s circle” who confirmed use of WhatsApp “widely across the city government.” Some even said it’s “the top way to get in touch with the mayor and her circle of aides,” and more recalled “being told to download the app” so “most employees in the mayor’s office and Cabinet had WhatsApp downloaded on their government-issued phones.” He quoted a political donor saying that “conversations on WhatsApp initiated by top mayoral aides can range from political strategy to talk of city projects.”
  • The Washington Post’s editors were unsparing in a January 16, 2022, editorial on then-Maryland Governor Hogan’s evasion of public records laws in his use of the Wickr disappearing message app, calling it a “sneaky” way to spew “acid-tongued” emails, “beyond the reach of the media’s, and the public’s, prying eyes” and bolstered by shaky legal fictions “likely to disintegrate on contact with a court of law.” Hogan, said the Post, “has come to see the public records law as an annoyance” and his use of Wickr “negates the broad right of access to records pertaining to the people’s business—exactly the right enshrined in law.”
  • Years earlier, OGC saw this coming and called for action in a 2019 letter to the mayor following reporting by Martin Austermuhle on D.C. government use and inquiries by Congress to the White House about WhatsApp use by Jared Kushner. The Coalition asked for a WhatsApp ban until retention policy was clear. Wrote then-Coalition board president Tom Susman, “Use of a messaging app that does not provide for collection, archiving, search, or generally, availability to the public of that information is a clear violation of law and circumvention of open government principles.”  Susman told the press at the time, with sound premonition,If the mayor doesn’t clamp down on it then I’m confident there will be a legal challenge to that because the public’s business should be done in a medium that’s available for public access.” A 2021 lawsuit by the Washington Post proved the point, where the court has required the mayor to search her phone after acknowledging exchanging WhatsApp messages during the January 6 Capitol insurrection. The mayor has searched but claimed to find nothing and the court found that not enough; details of further access are still being litigated.

As the Post editors said a year ago, a “technological reckoning” has been overdue. It’s time for a permanent fix.

The Open Government Coalition once again urges steps toward safeguarding all kinds of public records for all purposes including litigation, history, and public record request.  If you have suggestions on how D.C. government can safeguard records of official business in the new technological environment, let the Open Government Coalition know at info@dcogc.org. We’ll testify for sure when they have the hearing on the new permanent law.