White House: No new policy for encrypted chat apps

The White House declined to submit detailed information to a key House committee about personal email use by top officials, but did indicate that records policy has not changed since the Trump Administration took office.

The information came in an Oct. 10 letter from Marc Short, a presidential assistant and director legislative affairs, to the House Oversight Committee. The two-page letter was seen as a rebuff by some on the committee, because it did not offer detailed answers to a series of questions posed in a bipartisan Sept. 25 letter, asking White House Counsel Don McGahn about the use of private email accounts and encrypted messaging apps that automatically delete communications.

In the letter, Short indicated "there is no change in White House policy in the areas you cite since Jan. 20, 2017." He added that the law requires the head of the National Archives to consult with the Oversight Committee when it comes to any proposed disposal of presidential records.

"To date, it is my understanding that the Archivist has not engaged in such consultation or otherwise determined the White House to be out of compliance with the applicable recordkeeping requirements," Short wrote.

In a footnote, Short noted that "even social media accounts, including the President's Twitter account @realDonaldTrump, when used for official purposes, are preserved by the White House's recordkeeping system."

The original letter, from Chairman Trey Gowdy (R-S.C.) and Ranking Member Elijah Cummings (D-Md.) sought information about the use of text messages, encryption software and "phone-based messaging applications" to conduct official business, including details such as names, account information, phone numbers and evidence of compliance with federal records statutes. The letter also requested details on changes to White House policy since Jan. 1, 2017, while the reply specified no changes since the change of administration.

Short responded to this part of the committee's inquiry by saying, "The White House and covered employees endeavor to comply with all relevant laws and consults with the National Archives and Records Administration on [Presidential Records Act] compliance."

This brief reply generated some heat from committee Democrats.

"These were bipartisan requests to the White House related to the Administration’s private travel and email usage, and the White House has completely blown off the Committee," said Rep. Gerry Connolly (D-Va.) in an emailed statement. "The Committee needs to assert its jurisdiction and authority immediately to get this information. If the White House won’t provide documents to permit basic oversight, the Chairman should send subpoenas."

The disclosure that White House policies with regard to messaging applications hasn't changed may be of interest in a lawsuit currently before the federal courts.

The transparency group Citizens for Responsibility and Ethics in Washington is suing the Trump administration, alleging among other things that the White House is violating the Presidential Records Act by not issuing policies on the use of encrypted chat apps such as Whisper, Signal and Confide, some of which destroy messages after they are read.

In a motion to dismiss, the administration indicated that the group lacked standing to sue, and that judicial oversight of the details of White House implementation of records laws was out of bounds.

Archivist David Ferriero, in a March 30 letter to Sens. Claire McCaskill (D-Mo.) and Tom Carper (D-Del.), said that, "NARA has been advised by White House officials that their internal PRA guidance to all employees expressly forbids the use of such apps."