New potential case: challenging the government over their use of self-deleting messages on Signal and WhatsApp

Foxglove is supporting a potential legal challenge of the use of private messaging apps like Signal or WhatsApp by government ministers and officials – including Prime Minister Boris Johnson. We’re supporting investigative journalism nonprofit the Citizens to bring the claim.

Reports and Parliamentary debates suggest that a growing share of government business is done on instant messaging services that provide the option of deleting messages automatically after being read or after a short period of time. 

We think this poses serious legal problems. It also presents serious issues for transparency and democratic accountability. The Citizens have sent several FOI requests seeking disclosure of government messages on topics in the public interest.

We’ve supported them to send a legal letter to the government, raising serious questions and concerns about the use of these apps and requesting a response. If the government’s response is unsatisfactory the next step is likely to be a judicial review. 

In the UK the Public Records Act 1958 makes “every person responsible for public records of any description” responsible for maintaining “records illustrative of the process of developing government policy and legislation.”

The legislation covers, for example, messages between a special adviser and a minister about UK Government policy – such as preparations for Brexit or the government response to the coronavirus pandemic. This law, as well as the UK’s Freedom of Information law, requires messages to be retained – so it can be determined whether they should be archived for posterity and released to the public.

Using an app in which messages can instantly self-delete means that the legal analysis required can never be performed because the message is irretrievably lost.  This practice also presents a stark problem for historians who are concerned that swathes of crucial government policy debates on the core issues of the day may be erased forever.

The Citizens explain that they are taking this action because they’re worried that this “entire period of British history is going to be one giant black hole. We are in an unprecedented national emergency and we are going to have no records of how decisions were made – or even who made them. 

They say: “government business is being conducted under a cloak of secrecy enabled by the tech platforms. The only way we can have any hope of holding power to account or even simply maintaining the historic record is through transparency. We desperately need to challenge what we believe is a clear breach of the law on behalf of both Britain’s investigative journalists and its future historians.”

Foxglove is delighted to be teaming up with the Citizens. We hope legal action won’t be necessary but we’re deeply concerned by this government’s approach to data. It seems to involve collecting more and more information on all of us, while we have less and less information on our own representatives. Foxglove believes that privacy is for the people – transparency is for the government.