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.

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


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  1. icon
    Tanner Andrews (profile), 17 Feb 2021 @ 12:36am

    Re:

    invite the courts to operate on the principle of "contra proferentem"

    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.


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