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New technology presents new threats to transparency in government

FILE - This Feb. 19, 2014, file photo, shows WhatsApp and Facebook app icons on a smartphone in New York.  (AP Photo/Patrick Sison, File)
FILE - This Feb. 19, 2014, file photo, shows WhatsApp and Facebook app icons on a smartphone in New York. (AP Photo/Patrick Sison, File)
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At a time when voters can interact directly with their representatives in Congress on social media, watch lawmakers cook on Instagram, and have their memes retweeted by the president of the United States, it may seem strange to argue a lack of transparency in government is an urgent problem, but open government advocates say advances in communications technology have been a double-edged sword for watchdog efforts.

“It’s become both easier and harder,” said Alex Howard, former deputy director of the Sunlight Foundation. “It’s one of the oddities of this moment that we’ve never had this level of access to information, we’ve never had this capacity to generate information... and have that be instantly accessible around the globe.”

“At the same time,” he added, “there has been a notable increase in the capacity for people to use new tools for private messaging that have varying degrees of secrecy associated with them.”

Lisa Rosenberg, executive director of Open the Government, said President Donald Trump’s frequent public tweets shared with millions should not obscure more secretive activity behind the scenes, such as the use of private email by Ivanka Trump and Jared Kushner or the many questions that surrounded former Environmental Protection Agency Administrator Scott Pruitt.

“On the one hand, a lot of people will say Trump is the most transparent president in history because we always know what he’s doing because he tweets it out... but in terms of actual faith that policymaking documents are being preserved, we’re losing a lot of ground,” Rosenberg said.

Concerns about transparency and record-keeping also extend to Capitol Hill. Some members of Congress and candidates for office have embraced features on sites like Instagram, Facebook, and Snapchat that allow them to post short videos that disappear after a short period of time with no apparent archiving.

Rep. Alexandria Ocasio-Cortez, D-N.Y., and former Rep. Beto O’Rourke, D-Texas, have been particularly adept at using such videos to casually address their constituents, and Sen. Elizabeth Warren, D-Mass., has already used it as a tool to promote her 2020 presidential campaign.

"I'm here in my kitchen, and I thought maybe we'd just take some questions and I'd see what I can do," Warren said in a Dec. 31 video before popping open a beer and discussing her New Year’s Eve plans.

The video, streamed using Instagram Stories, is no longer available on Warren’s page. Media outlets and other users saved it, but Howard argued it should not be the media’s burden to archive all political content lawmakers post.

“Because politicians often have reasons to get rid of things that are embarrassing for them, tech companies should work with the watchdog community to ensure they are preserved,” Howard said.

Warren’s video was clearly not a matter of official Senate business or policymaking, but its disappearance into the ether could be a precursor to what open government groups warn will become a serious threat to transparency in the years ahead.

“One of my biggest concerns is definitely with the idea of disappearing apps,” Rosenberg said.

Encrypted and secretive messaging apps like WhatsApp, Telegram, and Confide that leave no record of conversations raise similar questions about accountability. As news leaked steadily out of the White House in early 2017, Politico reported a surge in the use of confidential encrypted apps by President Trump’s advisers and career civil servants for internal communications and contact with the media.

Experts say the reliance on such apps alone raises red flags.

“What have you got to hide?” Rosenberg asked. “Why are you using secretive disappearing apps if you can stand by what you believe and what you’re doing?”

At this point, Howard said it is fair to suspect corruption if officials are using encrypted apps for government business.

“If you see a governor or White House official or mayor or anyone else in government using a system that wasn’t built for government, that doesn’t have archiving built into it, it is fair to ask why,” he said.

Transparency advocates acknowledge members of Congress are not legally obligated to preserve all social media posts and internal communications, but they argue there is still a public interest in doing so. Congressional committee staffers have more clearly defined rules governing their record-keeping, but members’ offices have broad leeway to determine what is responsive to federal records laws and what is private.

“The problem is it’s up to the members’ personal offices to decide what is policy and archivable and what can just disappear... It’s a little bit of the fox guarding the hen house,” Rosenberg said.

According to Hana Callaghan, director of government ethics at the Markkula Center for Applied Ethics at Santa Clara University, elected officials have a clear ethical responsibility to provide transparency and accountability to the people they serve, even if they do not have a legal one.

“Just because something is legal doesn’t necessarily mean it’s ethical,” she said.

President Trump’s mingling of his personal and official Twitter accounts has drawn scrutiny and spurred a host of new issues that experts and the courts are still trying to resolve.

“With the president’s tweets, there was initially an issue of whether he was speaking as a private citizen or the president, and the White House has said the tweets are the official word of the president,” Callaghan said.

That distinction has resulted in lawsuits over whether the president of the United States can block American citizens from seeing and responding to his public statements on Twitter.

As a younger, more tech-savvy generation of lawmakers arrives in Washington and communication methods that evade traditional archiving practices expand, transparency fears will only grow. Much of the responsibility for allaying those fears will fall on the members themselves.

“We can and should see more politicians trying to set a higher bar themselves so that everybody is lifted up in terms of the standard here instead of a race to the bottom,” Howard said.

So far, politicians have mainly used features like Instagram Stories to share humanizing moments like cooking, eating, and drinking. While policy issues do occasionally arise, it is no great loss to history that some of these videos have not been preserved.

That may not always be the case. Five years ago, the notion of the president of the United States announcing firings, hirings, and major policy shifts on Twitter would have seemed outlandish, but here we are.

“I don’t think we need preserve Ocasio-Cortez’s Instagram post dancing in front of her new office, but at some point, it could cross the line and policy could be made over Instagram or Twitter,” Rosenberg said.

As an example of the danger, she pointed to the Trump administration’s policy of separating migrant families in custody at the southern border. Officials claimed last year no such policy existed, but groups like Open the Government were able to confirm it did because documents related to it were found. If officials had only discussed it on secret messaging apps, there would be no evidence to uncover.

“If we didn’t have that, how would we hold anyone to account? How would we hold the DHS secretary to account?” Rosenberg asked.

State and local governments across the country have grappled with these issues too. Some have far more expansive public records laws to contend with than others, and many officials have found themselves in court trying to block the release of their communications.

In California, Callaghan said a state Supreme Court case determined public business conducted on private devices can be subject to public records laws.

“At a minimum, a writing must relate in some substantive way to the conduct of the public's business,” the court ruled in Smith v. San Jose. “This standard, though broad, is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”

Callaghan stressed politicians do have a right to privacy and free speech, and not every word they write needs to be preserved if it is not related to official government business. Drawing that line can be tricky, though.

“The public official needs to err on the side of transparency from an ethical standpoint,” she said.

The underlying issue here is that political social media and messaging have evolved much faster than the regulations governing them, which is often the case with new technological advances and likely will continue to be the case with future ones.

“This is how technology and laws and regulations have interacted for many years now. We shouldn’t expect that to be different,” Howard said.

Howard pointed to the archives social media platforms have created for political advertising since the 2016 election as an example of what can be done if sites like Instagram really want to preserve politicians’ ephemeral posts for historical records.

“We should be expecting these companies, as they host this kind of speech... that they encode democratic principles into them,” he said.

If past experience is any indication, though, Congress is likely to be slow to legislate new preservation standards and technology companies will be hesitant to take responsibility for the content published on their platforms. Callaghan said government officials and political leaders must recognize what their obligations to openness and transparency are and let the law follow them.

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“They work for us,” she said, “and they can’t work in the dark.”

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