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Legal challenge against ministers sending self-destructing messages

By April 5, 2021April 7th, 2021Government

Messaging app WhatsApp recently introduced an option on its service for users to make messages disappear permanently for both sender and recipient after seven days. 

Government ministers, many of whom use WhatsApp and its rival app which already has this feature, Signal, face a legal challenge to stop them using these services when conducting government business. 

A coalition of transparency campaigners and university archivists have launched a legal challenge after concerns were raised that government officials could use these features in order to avoid accountability. They argue that it renders it impossible to perform legal checks to make sure any such messages should be archived for posterity. 

Foxglove, a campaign group, argues that ministers using these messaging features are undermining the democratic process by limiting accountability on themselves and data collected in the public interest:

“The basic point is that privacy is for the citizen and transparency is for the government. This government is amassing more and more data on all of us and we have less and less information on them. That has the democratic bargain exactly backwards.”

The ability to automatically delete messages over an encrypted channel such as WhatsApp has raised legal questions regarding where such messages fit in with a ruling ten years ago that stated that private emails and texts discussing government business were still subject to freedom of information requests. 

While someone can still be prosecuted for destroying messages pertaining to a freedom of information request, automatically deleted messages that are the subject of public interest and governance pose more difficult legal questions. 

However, campaigners argue that the active use of this format of messaging is equivalent to actively seeking to manually destroy important information and leaves users above scrutiny. They claim that this affects both citizens and future historians, citing legislation from 1958 which states that documents required for archiving are not distinguished between formats. This would mean that messages sent over apps pertaining to government business fall under archivable material and have to be preserved. 

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