EPA Employees Are Using Encryption Technology To Hide Resistance To Trump — But Is It Legal?

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Michael Bastasch DCNF Managing Editor
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Federal employees are turning to encryption technologies to coordinate their resistance to the Trump administration, looking for ways to protect their conversations from hackers or agency overlords.

A small group of Environmental Protection Agency (EPA) employees are already “communicating incognito using the app Signal shortly after Trump’s inauguration,” Politico reports. Such apps encrypt communications and make them difficult to monitor or hack.

But is this legal? Probably not, according to one expert.

“It appears that some employees at the EPA may be using encrypted apps on their phones to avoid transparency laws in an effort to conceal their communications from internal and external oversight,” Henry Kerner, an attorney and senior vice president of the public interest law firm Cause of Action, told The Daily Caller News foundation.

Federal law requires agency employees to preserve work-related records on government servers, even if such communications occur over non-government emails, phones or text messages.

Encrypting messages allow employees to create potentially work-related messages as ones they can control. That creates the possibility employees could use encryption to circumvent Freedom of Information Act (FOIA) requests.

“Under the Federal Records Act, the EPA has a legal obligation to preserve all records made by employees working on official government business,” Kerner said. “This obligation is all the more important if EPA employees are using personal cellular devices or private accounts for such purposes.”

Chaim Mandelbaum, an attorney and director of the Free Market Environmental Law Clinic, said it’s less about the encryption technology itself, but instead about preserving records.

“Agency employees are obligated to preserve work-related communications sent or received regardless of the device used and to forward them to the agency for possible archiving,” Mandelbaum told TheDCNF.

“If agency employees are failing to do so then they are in clear breach of agency policy,” he said. “Their use of encrypted devices itself is irrelevant. It is the end product, the communication itself, not the means of delivery that matters. They must send a copy of the communications to the agency’s system.”

Politico reported “a small group of career [EPA] employees — numbering less than a dozen so far — are using an encrypted messaging app to discuss what to do if Trump’s political appointees undermine their agency’s mission to protect public health and the environment, flout the law, or delete valuable scientific data that the agency has been collecting for years.”

One EPA employee told Politico they bought a “more secure cell phone.” The overall goal of their effort is to “create a network across the agency” of those willing to call out Trump appointees they see as acting unlawfully.

“I have no idea where this is going to go. I think we’re all just taking it one day at a time and respond in a way that seems appropriate and right,” one of the EPA employees using encryption told Politico on the condition of anonymity.

EPA has long had problems with employees not preserving records and using private emails to conduct agency business. The agency’s inspector general, for example, found EPA employees only archived 86 text messages out of 3.1 million sent and received in 2015.

Former EPA Administrator Lisa Jackson used an alias email address under the name “Richard Windsor” to conduct agency business, and top agency officials have been caught using private emails to coordinate with environmental activists.

EPA employees aren’t alone in their efforts to resist Trump. Department of Labor employees are using private email accounts to circulate a letter asking lawmakers to oppose Carl’s Jr. CEO Andrew Puzder, Trump’s pick for labor secretary.

Trump fired acting Attorney General Sally Yates Monday after she ordered Department of Justice lawyers to not defend an executive order on immigration in court.

That same order, temporarily halting the U.S. refugee program, has been opposed by career Department of State employees who “gathered nearly 1,000 signatures for what’s known as a “Dissent Channel” memo in which they express,” Politico reports.

News outlets frantically reported Trump’s team ordered the EPA employees to temporarily freeze grant spending and stop sending out social media posts or talking with reporters.

But veteran agency employees who spoke to the New York Times said the Trump administration acted no differently than the Obama administration did when taking over the reins of government in 2009.

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