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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: encryption, foia, going dark, michigan state police, transparency

Reader Comments

Subscribe: RSS

View by: Thread

  1. icon
    That One Guy (profile), 1 Feb 2021 @ 11:47am

    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.'

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Special Affiliate Offer

Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Report this ad  |  Hide Techdirt ads
Recent Stories
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.