Pa. lawmakers must close loophole on Signal, other apps that could subvert transparency laws [editorial] (2025)

THE ISSUE

“Experts warned during a March 24 state Senate Intergovernmental Operations Committee hearing that there are no laws requiring officials to disclose their use of ephemeral messaging apps, and even if there were, they might be hard to enforce because the technology leaves no traces of conversations,” LNP | LancasterOnline’s Jaxon White reported. “That potential gap in government transparency must be addressed soon by Pennsylvania’s General Assembly, according to open records advocates who testified in the hearing.”

People generally don’t expect national security officials to use commercial messaging apps to discuss highly sensitive military operations.

But that’s what Trump officials recently did, playing fast and loose not only with the safety of the military pilots who carried out airstrikes in Yemen, but presidential records and federal records laws. One glaring problem with that: The text messages about the operation that the officials transmitted via the app Signal were set to delete automatically.

Fortunately, a federal judge has ordered the participants in the “Signalgate” chat to preserve those messages.

But the scandal raised understandable concerns about the use of such apps in other levels of government.

In 2022, LNP | LancasterOnline’s “Lancaster Watchdog” reported that at least 10 Lancaster County elected officials had registered their phone numbers for accounts on end-to-end encrypted messaging apps such as Signal, WhatsApp and Telegram.

“End-to-end encryption is a technology that scrambles the data that one person sends to another in order to prevent a third party from hacking and obtaining private information. Some apps that employ the technology also can be set to automatically delete messages after they’ve been read,” that column explained.

Contacted recently, Lancaster City Council, Lancaster County commissioners, many of the county’s 60 municipalities and nearly every one of its school boards told LNP | LancasterOnline that their members do not use such apps to conduct government business.

Indeed, most Lancaster County officials “echoed Pequea Township Supervisor Harry Lehman’s response: ‘We don’t do any of it. ... We’re old school.’ ”

We believe it. But some things shouldn’t be left to chance.

These apps may be useful in ordinary life, but they should not be used to conduct government business.

If local officials were to send messages through an auto-deleting app, those messages likely would be unobtainable through a public records request under Pennsylvania’s Right-to-Know law because the records no longer existed, said Melissa Melewsky, legal counsel for the Pennsylvania Newsmedia Association.

And while any discussions involving public business should be subject to the state’s open meeting law — the Sunshine Act — Melewsky said the apps’ features would eliminate any evidence that the officials conducted business on them.

“The use of these messaging apps is both problematic from a transparency perspective, but it’s also problematic from a record retention policy,” Melewsky told the state Senate Intergovernmental Operations Committee.

So we strongly agree with Melewsky, who believes Pennsylvania must adopt a clear record-retention policy.

That’s the stance, too, of attorney Joshua Bonn. An expert in government transparency law, Bonn testified at the committee hearing that a lack of legislative guidance from the state Legislature grants local government officials “significant discretion.”

“The history is that there have time and time again been reports of public officials who have deleted messages that are later determined to be public records, but that they cannot get access to,” Bonn said.

We’d like to think that public officials would hold themselves to the highest standards on transparency and record retention because they understand who they work for and why they cannot operate in the shadows. And we deeply appreciate public officials who have that kind of integrity.

But we also weren’t born yesterday.

In written testimony to the Senate committee, the directors of government relations at the County Commissioners Association of Pennsylvania and the Pennsylvania State Association of Township Supervisors asserted that existing law already safeguards records relating to government business.

As LNP | LancasterOnline reported, “Pennsylvania’s Right-to-Know Law has been interpreted by the judiciary to clarify the types of records that must be made available to the public since it was adopted in 2008. Courts have ruled that it covers email and text exchanges from an elected official on their government or personal devices if those messages include agency business.”

Melewsky, however, pointed out that neither the Right-to-Know Law nor the Sunshine Act directly addresses the use of ephemeral messaging apps. This risks giving government officials a loophole they could exploit to subvert state law when doing what’s supposed to be the public’s business.

“Without clear guidance from the General Assembly, and as technology continues to advance, this problem will likely persist in eroding the public’s rights under the Sunshine Act and the Right-to-Know Law to transparent, accountable government,” Melewsky cautioned in her written testimony to the Senate committee.

Michigan is ahead of the curve on this. In 2021, it banned all departments and agencies from using apps that could violate the state’s public record retention laws.

In Pennsylvania, meanwhile, cases pertaining to elected officials’ use of auto-deleting apps have been heard in court.

In Bucks County, for instance, a resident named Timothy Daly alleged that Central Bucks School District board members violated the Sunshine Act by using Signal to communicate about official business.

Daly told the Senate panel that lawmakers need to “do something to improve the process to ensure proper transparency in government.”

We couldn’t agree more.

We understand that it’s impossible to legislate for every emerging technology. But as the federal Signal scandal demonstrated, apps that automatically delete messages exist now and some government officials are taking advantage of them to evade public scrutiny.

The spirit of Pennsylvania’s government transparency statutes may already prohibit the use of such technology. But the letter of the law ought to clearly forbid it, too.