It's Still Way Too Easy for Government Employees to Hide Official Conversations

Think Hillary Clinton was the first government employee ​to be caught using a personal email account to conduct official business​? Government employees have been doing this sort of thing for years.

Both the US and Canadian governments have information laws that require government correspondence to be logged, retained, and made available to the public through Freedom of Information or Access to Information laws, respectively. But both governments make skirting these requirements surprisingly easy, and in some cases, employees are only too happy to do so.

According to The New York Times, "Clinton did not have a government email address during her four-year tenure at the State Department. Her aides took no actions to have her personal emails preserved on department servers at the time, as required by the Federal Records Act."

It's not c​lear whether Clinton violated her record keeping obligations—her advisors maintain she complied with "the letter and spirit of the rules"—but it wouldn't be the first time that government employees have been found to rely on personal accounts, or more ephemeral forms of messaging, for sensitive government communications.

Often, services such as BlackBerry Messenger, text messaging, and other instant messaging apps can be configured by government departments so that messages cannot be logged or accessed after a certain period of time.

The use of personal email and blackberry PIN messaging to evade public records laws is a genuine problem in Washington and beyond.

— Nick Confessore (@nickconfessore) March 3, 2015

Last March, for example, the state of Maine banne​d employees from using instant messages or text messages to conduct state business, after it was discovered that employees were being instructed to conduct sensitive business outside the eyes of record keepers.

According to the Portland Press Herald, "a former employee of the Maine Center for Disease Control and Prevention told the Legislature's Government Oversight Committee that supervisors had told her to use texts because the messages couldn't be obtained through a public records request."

Then, in July, the Washington Times found myriad ot​her US federal government agencies lacked requirements for text messages and instant messages to be stored.

And in 2013, the Information Commissioner of Canada wrote an entire report on the threat that instant messaging posed to access to inform​ation requests. The office reviewed the practices of 11 institutions and various ministerial offices, and found that "instant messages, for the most part, are not backed up on servers, are automatically deleted after a set period of time and are, as a result, not recoverable."

The government's rationale? The Information Commissioner's office was told that instant messages are no different from telephone calls.

It's unlikely that government employees always flock to personal accounts and instant messaging apps for sensitive conversations, but it's clear that the ephemeral nature of many mobile instant messaging apps is in some cases being abused.

I've received my own share of documents via Access to Information that are curiously devoid of information—only to see an email between employees suggesting further correspondence be conducted "PIN-to-PIN" using BlackBerry Messenger. (The devices are still widely used by government employees for security reason, and​ even Obama is said to have one.)

Indeed, the Information Commissioner of Canada's office launched its own investigation after formal complaint regarding a similar incident was received. "In that case, the complainant had received an email in which one government official asked another to use a "pin" instead of email to communicate," the report reads—ostensibly to avoid leaving behind a paper trail.

What's the answer? At the very least, it's clear there should be some sort of mandatory logging requirement for instant messages conducted on government devices, subjecting them to the same information requirements as other forms of official communication.

As more business conversations move to consumer services such as Facebook Messenger and Apple's iMessage—services that are out of government reach—it's clear that such oversight will only become harder and harder to enforce. But for the sake of transparency, that doesn't mean we shouldn't try.