Michigan State Police Officials Are Dodging Public Records Obligations By Using Encrypted Messaging Apps
from the it's-not-the-encryption,-it's-the-message-destruction dept
There have been some very vocal calls for encryption backdoors by the heads of certain law enforcement agencies. And those making the most noise imply every other law enforcement agency that isn’t clamoring for worse security supports the clamoring loudmouths demanding mandated backdoors.
Maybe these other agencies do agree with “going dark” proselytizers like Chris Wray and Cy Vance. Maybe these agencies that never speak out are the silent majority. Then again, maybe they recognize the tradeoff for what it is and find other ways to obtain the evidence they need. But one thing is clear, cops are fans of encryption if it benefits them.
Admissions made in a lawsuit brought by a fired Michigan State Police inspector show police officials have been using an encrypted messaging app with a self-destruct feature to engage in official business.
Top officials at the Michigan State Police have been using text messaging encryption devices that can put their internal communications out of the reach of the Freedom of Information Act and legal discovery, according to admissions the MSP made in a civil lawsuit.
Among those who have downloaded the “end-to-end” encryption applications onto their state-issued phones are a lieutenant-colonel, two majors and two first lieutenants, according to court records obtained by the Free Press.
Former inspector Michael Hahn sued the Michigan State Police after he was allegedly fired in retaliation for his vocal opposition to “unlawful racial and gender hiring and promotion preference.” Hahn’s lawyer, James Fett, suspected something was amiss when his discovery request for text messages from officials involved in Hahn’s firing returned hardly any messages. The meager output was at odds with the four-month investigation of Hahn involving numerous MSP officials that occurred prior to his dismissal.
After a motion to compel, the Michigan State Police admitted its officials were using an encrypted app with self-destructing messages that leaves no permanent record on officials’ phones or MSP servers.
Fett asked the MSP to admit that Gasper, Hinkley, Lt. Col. Kyle Bowman, Maj. Emmitt McGowan, Maj. Beth Clark, 1st Lt. Brody Boucher, and 1st Lt. Jason Nemecek had each downloaded and used an instant messaging application with end-to-end encryption on their state-issued cellphones.
Assistant Attorney General Mark Donnelly, who is representing the state defendants in the lawsuit, admitted in an Oct. 29 response, obtained by the Free Press, that was true for each of the officials named. But in a corrected filing Thursday, Donnelly said use of the encryption app on state phones was not true for Gasper or Hinkley, though it was true for the others.
The app being used appears to be Signal, according to the fired MSP inspector bringing the lawsuit. Hahn noted that lots of MSP officials’ names disappeared from the app after the Detroit Free Press began asking MSP officials to comment on the filing.
While encryption is a great way to protect sensitive communications from malicious hackers and criminals, it’s not so great when it’s being used to shield public servants from transparency and accountability. By all means, these communications should be encrypted. But they should also be archived and stored somewhere the MSP can retrieve them when sought by public records requesters or court orders. This storage should also be encrypted.
Encryption isn’t the problem here. It’s the sidestepping of obligations to the public — something that, in this case, happens to involve encryption. And if this is going to get sorted out, it’s probably going to take litigation and nosy journalists to get it done. Because it looks like the department in charge of defining the contours and limits of official communications isn’t up to the task.
The Michigan Department of Technology Management and Budget can restrict or forbid use of messaging services that don’t create permanent records of official communications. It hasn’t. And its conflicting statement to the Detroit Free Press seems to imply it permits the use of self-destructing messages by state employees who are required to preserve their official communications.
Asked whether state employees are permitted to install end-to-end encryption applications on their state-issued phones, Caleb Buhs, a spokesman for DTMB, said that would be allowed only “if the application is for legitimate state business.”
Which is fine, but…
Buhs was then asked to give examples of what the Whitmer administration would consider “legitimate state business” that would leave no record of official communications between state employees. He did not respond.
Well, that clears nothing up. Perhaps this will motivate the DTMB to come up with some coherent guidelines and retention mandates. Or perhaps the Department will just find a better spokesperson.
Whatever the end result of this lawsuit, the immediate payoff is confirmation public officials are violating laws and blowing off their obligations to the public. Perhaps some public good will come of this outing of willful destruction of public records, but given the number of times similar things have happened at all levels of government, it’s difficult to greet this revelation with optimism, rather than cynicism.
Filed Under: encryption, foia, going dark, michigan state police, transparency
Comments on “Michigan State Police Officials Are Dodging Public Records Obligations By Using Encrypted Messaging Apps”
Like every person, company, industry and organisation they only want encryption because it benefits them. Even more so, the chances are they are up to no good and dont wanna be discovered. They do, however, want back doors simply because they wanna be able to checkout any accusations, who made them, where the info came from and what is being done with it as far as bringing charges. Always in these situations those who wanna get something but prevent others from having the same are those who are up to no good and are crapping backwards that they’re gonna be found out! Bad enough anyway but when it’s those who are employed to protect us citizens, look after our welfare, it’s a pretty poor showt
Well at least he's consistent...
Buhs was then asked to give examples of what the Whitmer administration would consider "legitimate state business" that would leave no record of official communications between state employees. He did not respond.
He’s just practicing what he preaches, if you don’t want evidence to come back to bite you just refuse to provide it, whether that be by using an app that destroys records or refusing to allow those records to be created in the first place.
Sarcasm aside I imagine the real reason for the refusal to respond is simply that he threw out the bullshit excuse and didn’t expect to be called on it, and doesn’t dare give the honest answer of ‘it’s in the state’s interests for their to be no evidence of official wrongdoing since no evidence leads to dead lawsuits, therefore anything that advances that is fine by us.’
Re: Well at least he's consistent...
A local government agency in my area got in some trouble when records requests turned up evidence of wrongdoing. It then quickly came out that those at the top of the agency had then put out the word to subordinates "Don’t write anything down."
Using Signal and the disappearing message feature is just the newer-tech, non-paper version of the same thing.
And as Tim pointed out:
Re: Well at least he's consistent...
The previous government in my home province (I’m Canadian) got into big trouble because it had become standard practice to "triple delete" inconvenient documents (ie. they made sure to delete the back-ups, too) — potentially compromising official records, especially those documents/e-mails that were being officially sought through our Freedom of Information process.
Seems to me that the fastest way of stopping that particular nonsense is to invite the courts to operate on the principle of "contra proferentem" i.e. if the police can’t / won’t show what the messages were then invite the court to draw an adverse inference from that (that the preferred meaning should be the one that works against the interests of the party who provided the wording. Yes, I know it really applies to contract law, but why not here as well?)
Re:
I’ve thought for a while that this was a good idea for criminal prosecutions. Imagine how much better police bodycams would be in practice if, after a “malfunction”, the jury was instructed to assume the missing footage said what the defendant said was in it. For example.
Re: Re:
Actually, we already have something designed to fit this sort of fact pattern. We call it “spoliation”, and when evidence which was within the peculiar control of one side disappears without good explanation then we ask for an instruction under that name.
The idea is that the jury is told to presume that the party who made the evidence disappear had a good reason for it, and should assume that it would have been unfavorable.
We finally found the criminals going dark!
The courts are recognizing limits
There are a lot of people on this site who think that the 1A is a get out of jail free card and so is S230, but the courts have actually leaned heavily toward the idea that breach of contract holds even in the face of the 1A and S230. Citation for those too lazy to Google
TL;DR the courts have started pushing back on both the 1A and S230 on this, arguing that it was not the intent of Congress or the founders to make either provision a way to override valid contracts.
This Looks Bad
It seems like the Detroit Free Press is conflating end-to-end encrypted messaging with self-destructing messaging. End-to-end encryption is fine and, by now, should be standard. Self-destructing messages shouldn’t be allowed for official business conducted by employees covered by federal or state level freedom of information acts.
Unfortunately, if the coverage on this is anything to go by, the two will be conflated and this will end up being used as further evidence for why end-to-end encryption is evil and should be forbidden or backdoored.
No need to worry about those secret police enforcing secret laws written by secret committees and adjudicated by secret courts.
opportunity
I hope someone is keeping a record of these police crimes and the people who make them possible. This is the first time any nation has had a chance to actually record the process of a Police State take-over on a day to day basis.
Because fascist coups are perpetrated by the richest citizens of a nation, in an attempt to get super rich, super fast, by stealing their own nation’s wealth, the public never notices the process until its far too late. After all, the wealthiest people in a nation are the very people the general public look up to and admire and wish they were like, and are the last people the public would suspect of such a crime. This is why Fascism always works.
The very reason that Fascism always wins, is simply that the damage is done – the laws have been altered – long before the public realizes a.) that there is an enemy and b.) who the enemy is – and once the fascists succeed, the nation’s government and its "justice" apparatus no longer actually exist, having been replaced by the fascists with their own people. So there is no-one left to bring the perps to justice if they are caught anyways. Besides which most of the laws that would be effective against the fascists have been altered behind the scenes by the minion lawmakers the fascists have placed in positions of power.
And if there is a possibility of full exposure, the fascists simply start a war and escape or cover their tracks during the chaos. This is still a very real possibility if the current fascists rulers of America feel their scam has been discovered and is in jeopardy, although in truth, its going to be difficult to get any nation to join the American fascists in a war after Trump.
This is an opportunity to actually see and record first hand for the first time, the process that is the real cause of most failed nations of the past – the business of a nation’s wealthiest, liquidating their own nation’s assets for fun and profit, by making that liquidation process legal.
Miss this opportunity and kiss your ass and your country goodbye, like all the others before it. 🙂
The solution is simple:
If the defendants are destroying evidence as a matter of policy, the plaintiff simply makes a spoliation motion.
If the judge grants it, the lack of evidence is viewed by the court in the most damning possible light. Where actual evidence might lead to a more balance ruling, the most damning possible interpretation leads to a maximum judgment against the defendant, since the truth must be pretty awful of they had to delete all records of it.