A bipartisan effort to outlaw the use of self-destructing text-messaging apps to conduct public business has run into a roadblock in the Missouri Senate.
And with less than two weeks before the legislature adjourns for the year, the proposal’s odds of success are slim.
The Missouri House added the prohibition in February as an amendment to a wide-ranging bill that included major changes to the state’s Sunshine Law and caps on lobbyist gifts to local elected officials.
State Sen. Ed Emery, a Republican from Lamar and the senate sponsor of the bill, said he removed the amendment because use pf the apps “is not something I think is terribly harmful.”
With time running short and a stack of bills left to deal with before adjournment, Emery said the app ban was unlikely to get across the finish line this year regardless.
“Frankly,” he said, “this bill is not a terribly high priority.”
The proposed prohibition followed revelations over the last year and a half about the use of self-destructing text messaging apps throughout Missouri government.
The Star reported in late 2017 that then-Gov. Eric Greitens and most of his government staff were using an app called Confide, which automatically deletes a text message after it has been read. A pair of attorneys from St. Louis sued, arguing Confide was being used to subvert the state’s open records and transparency laws.
That lawsuit is still ongoing nearly a year after Greitens resigned from office.
Earlier this year The Star reported that the Missouri State Highway Patrol used a different self-destructing text message app, called Silent Phone, for more than four years.
Silent Phone allows users to set the time of a text’s deletion at anywhere from one minute to 90 days, after which it is gone forever.
The highway patrol used the app during two high-profile protests: Ferguson in 2014, following the killing of Michael Brown, an African American, by a white police officer, and St. Louis in 2017, after the acquittal of a white St. Louis police officer charged with first-degree murder in the shooting death of Anthony Lamar Smith, and African American suspect.
The highway patrol says it no longer uses Silent Phone and has not switched to another encrypted text message app.
In addition to the highway patrol, emails obtained last month by The Star through an open records request show that about a dozen of Greitens’ former government staff also used Silent Phone.
Two of them – Chief Operating Officer Drew Erdmann and his special assistant, Maddie McMillian – kept it on their state-issued phones after Greitens resigned last June.
Erdmann said he last used the app in November 2017 while traveling for official business to the Middle East.
“If the only public servant who ever used this type of software was Gov. Greitens, I’d agree that it’s not a big issue,” said state Rep. Gina Mitten, D-St. Louis County. “But that’s not the case.”
Encrypted and self-destructing text messaging apps have drawn increased attention nationally since Special Counsel Robert Mueller’s report on the investigation into Russian efforts to interfere in the 2016 United States presidential election.
Mueller wrote that many of the individuals interviewed as part of his investigation “communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records.”
Early in the Trump Administration, White House staffers reportedly used Confide to keep their communications secret until former press secretary Sean Spicer explicitly banned its use, saying it was a violation of the Presidential Records Act.
Mark Pedroli, the St. Louis attorney who sued the governor’s office over use of Confide, says he believes state law already forbids the use of these types of apps by government employees.
“The law already prohibits the removal or destruction of original public records, but we need judges to enforce that interpretation,” Pedroli said, later adding: “That said, I think it’s a good idea to clarify the law so that it leaves no doubt about these burner apps. The failure of the legislature to act demonstrates their fear of the clarification or demonstrates their interest in not banning burner apps.”
Pedroli has also accused Gov. Mike Parson, who took over for Greitens, of watering down his office’s record retention policy regarding vanishing text message apps.
Under Greitens, the policy in the governor’s office was that “no staff member may use any self-destructing messaging application to conduct public business, whether it be on a state-issued or personal device.”
Under Parson, the policy states that texting apps that “immediately and automatically delete messages upon the recipient’s review of the message would make it impossible to determine if the message must be retained under Missouri law.” Therefore, staff can’t use the apps to conduct public business or download them on government-issued phones.
Pedroli contends the new policy leaves the door open to use Silent Phone, since technically it doesn’t always “immediately” delete texts.
Steele Shippy, Parson’s communications director, said the policy change was made to strengthen the prohibition on self-destructing text apps. And he said it absolutely prohibits the use of Silent Phone by office staff for conducting public business.
Others aren’t so sure.
“The new language is unquestionably weaker,” said Dave Roland, director of litigation for the libertarian Freedom Center of Missouri. “I can’t express any opinion as to whether the governor’s office intended to create a giant loophole, but that certainly seems to be the effect of the new policy.”
As for the legislative effort to ban these apps for government employees, questions were raised during the Senate hearing on the bill about how it might impact law enforcement.
Specifically, St. Charles County argued that any ban must exclude undercover officers.
“If it became widely known among criminal element that law enforcement didn’t have those apps available to them, it would be the quickest and easiest way to detect whether they are dealing with an undercover cop rather than what they were purporting to be,” said John Watson, county counselor for St. Charles County.
Mitten said she has no issue at all adding an exemption .
“I understand there needs to be an exemption for undercover activities. I support that,” she said. “But for day-to-day transactions? That’s an issue. Law enforcement, just like every entity, has a responsibility to retain records under the sunshine law.”