April 12, 2017 Last Updated 2:01 pm

Judicial Watch sues EPA for records involving alleged use of cell phone encryption app

Suit comes after an article in Politico appeared in February, claimed agency personnel, fearful of their jobs, began communicating incognito using the private messaging app ‘Signal’

The conservative watchdog group Judicial Watch, famous for its FOIA requests regarding the attack on the diplomatic mission in Benghazi, as well as FOIA lawsuits against the State Department regarding Hillary Clinton’s use of a private email server, is once again in the news.

The group now wants a court to force the Environmental Protection Agency to give it “any and all records requesting or approving the use of the messaging app known as “Signal” by any EPA personnel for official business.”

In a separate lawsuit, the same group wants to force the Bureau of Alcohol, Tobacco, Firearms, and Explosives to release all communication records about a proposal to reclassify certain ammunition for the AR-15 rifle as “armor piercing” something the Obama administration has been seeking.

It is also threatening to sue 11 states where the organization says registered voters exceed the number of voting-age citizens in certain counties, the states being Alabama, Florida, Georgia, Illinois, Iowa, Kentucky, Maryland, New Jersey, New York, North Carolina, and Tennessee.

“Dirty election rolls can mean dirty elections,” said Judicial Watch President Tom Fitton. “These 11 states face possible Judicial Watch lawsuits unless they follow the law and take reasonable steps to clean up their voting rolls of dead, moved, and non-citizen voters.”

Claims of voter fraud have been a consistent theme of Republican politicians, with many GOP controlled states passing, and often having the courts strike down, new voter ID laws. On Monday, a federal judge ruled that the Texas voter identification law passed in 2011 was enacted with the intent to discriminate against black and Hispanic voters.

Here is the statement regarding the FOIA suit sent to EPA officials by Judicial Watch:


Washington, DC – April 12, 2017 — Judicial Watch today announced it filed a Freedom of Information Act (FOIA) lawsuit for communications sent or received by EPA officials who may have used the cell phone encryption application “Signal” to thwart government oversight and transparency.  The suit was filed in the United States District Court for the District of Columbia (Judicial Watch v. Environmental Protection Agency (No. 1:17-cv-00533)).

The lawsuit was filed after the EPA failed to respond to Judicial Watch’s February 3, 2017 FOIA request seeking:

  1. Any and all work-related communications sent to or from the following EPA officials using the app known as “Signal,” for the period February 3, 2016 to the present:
  • Administrator (or Acting);
  • Deputy Administrator (or Acting);
  • Assistant Administrator (or Acting), Office of Air and Radiation;
  • Assistant Administrator (or Acting), Office ofChemical Safety and Pollution Prevention;
  • Assistant Administrator (or Acting), Office ofEnforcement and Compliance Assurance;
  • Assistant Administrator (or Acting), Office of Landand Emergency Management;
  • Assistant Administrator (or Acting), Office ofInternational and Tribal Affairs; and
  • Chief Financial Officer (or Acting).

2. Any and all records requesting or approving the use of the messaging app known as “Signal” by any EPA personnel for official business.  The time frame for the requested records is July 1, 2014 to the present.

The use of Signal by EPA officials to prevent government oversight was reported in a February 2, 2017, Politico article entitled “Federal workers turn to encryption to thwart Trump.” According to the article:

Whether inside the Environmental Protection Agency, within the Foreign Service, on the edges of the Labor Department or beyond, employees are using new technology … to organize letters, talk strategy, or contact media outlets and other groups to express their dissent.

***

Fearing for their jobs, the employees began communicating incognito using the app Signal shortly after Trump’s inauguration.

***

[T]he goal is to “create a network across the agency” of people who will raise red flags if Trump’s appointees do anything unlawful.

“This new lawsuit could expose how the anti-Trump ‘deep state’ embedded in EPA is working to undermine the rule of law,” said Judicial Watch President Tom Fitton. “Let’s hope the Trump administration enforces FOIA and turns over these records.  Given EPA’s checkered history on records retention and transparency, it is disturbing to see reports that career civil servants and appointed officials may now be attempting to use high-tech blocking devices to circumvent the Federal Records Act and the Freedom of Information Act altogether.”

Signal has long been touted within the high-tech community as an encryption device particularly effective for blocking government access to smartphone messaging.  In a 2015 article entitled “Signal Keeps Your I-Phone Calls and Texts Safe from Government Oversight,” TechCrunch.com advised, “Don’t want someone else handing your text messages, pictures, video or phone conversations over to the government? There’s an app for that. An iOS app called Signal is a project out of Open Whisper Systems, a not-for-profit collective of hackers dedicated to making it harder for prying government eyes to get a hold of your information.”

The use of private encryption software such as Signal by federal officials and employees not only may make it difficult for their work to be overseen; it also may make it impossible for federal agencies to fulfill their record-keeping and transparency obligations under the Federal Records and Freedom of Information Acts.  The Federal Records Act requires federal employees to preserve all records of work-related communications on government servers, even if such communications occur over non-government emails, phones or text messages.  The records must be forwarded on to the agency for preservation and archiving, and the records are subject to release under the Freedom of Information Act, unless specifically exempted.

The Environmental Protection Agency has a history of employees’ failing to preserve records and using private emails to conduct agency business or conducting official business through non-official communications channels:

  • According to a September 20, 2016, report put out by the Energy and Environment Legal Institute, which was based upon emails obtained under FOIA:  “Moving select correspondence about EPA-related business to non-official email accounts was an understood, deliberate and widespread practice in the Obama EPA.”
  • According to a December 21, 2016, Inspector General Report, the EPA’s “mobile device-management processes do not prevent employees from changing the device’s configuration settings for retaining text messages on all government-issued mobile devices.”  Apparently, at least one EPA employee set his phone to delete messages automatically after 30 days.
  • Although excluded from the body of the IG report, the Inspector General reportedly toldthe chairman of the House Committee on Science, Space and Technology, Lamar Smith, who requested the IG investigation, that EPA officials archived only 86 text messages out of 3.1 million messages sent and received by agency employees in 2015.
  • Chairman Smith originally requested the IG report in November 2014 after it was revealedthat high-ranking EPA officials, including then-EPA Administrator Gina McCarthy, may have deleted texts to hide official business.

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