How Telegram Offers Way Around Public Records Laws

In an interview, a San Francisco government staff member said they were encouraged to use the app by colleagues in City Hall who described it as a way to skirt the city’s public records laws. “That is exactly what it’s being used for,” the staff member said. “It’s caught on.”

Text messages and emails by city officials are considered public records under California’s Public Records Act if they contain information “relating to the conduct of the public’s business” and not just personal information, according to a guide distributed by San Francisco’s city attorney. The city attorney also advises officials to consider written correspondences on personal devices to be part of the public record. However, the guide states the courts have not resolved the issue of whether correspondences on personal devices are part of the public record.

San Francisco’s public records law doesn’t address new forms of electronic communication like encrypted or ephemeral messaging apps, but it “has become an ongoing topic of discussion” on the Board of Supervisors’ Sunshine Ordinance Task Force, said the task force’s administrator Victor Young.

Better Choice

Telegram messages encrypted in the app’s “secret chat” mode can be deleted on devices of both the sender and recipient, making it a better choice than WhatsApp and iMessage for people who want to make sure information gets wiped away. Telegram, which has more than 100 million monthly active users around the world, doesn’t store messages sent in secret chat mode on its servers, according to the app’s website. That makes the messages unreadable, even under a court order, if users delete them.

While WhatsApp and iMessage texts are encrypted by default, users cannot delete messages on a recipient’s device.

April Veneracion, a top aide to Supervisor Jane Kim and a Telegram user, said one reason officials use the app is because it “self destructs.” She also praised the app’s chat room feature that “allows us to be in touch with each other almost instantaneously.” She said she didn’t know if it violated the city or state’s public records laws. “I should find out though!” she wrote in a message.

“The laws have to evolve,” added LeeAnn Pelham, executive director of the San Francisco Ethics Commission. “If folks are doing the public’s business, that’s something policies have to evolve over time to capture.”

Smartphone-Centric

San Francisco’s public records law doesn’t address new forms of electronic communication like encrypted or ephemeral messaging apps, but it “has become an ongoing topic of discussion” on the Board of Supervisors’ Sunshine Ordinance Task Force.

A second San Francisco government staff member invited to join Telegram by other staff members said legislators seemed to like the app because they are younger and more “smartphone-centric and love the ability to have a direct connection” to each other.

John Kaehny, who runs a government accountability advocacy group in New York called Reinvent Albany, said the rise of messaging apps has made the distinction between written communication and phone or in-person conversations “blurry.”

“This has the potential to obliterate effectiveness of [freedom of information] laws,” Mr. Kaehny said. “If officials all decide they’ll use secure chat, there’s not a whole lot of public can do to stop them right now.”

San Francisco supervisor Aaron Peskin, who has been seen by The Information as active on the app, didn’t return requests for comment. One government official said Supervisor Kim also uses Telegram. She didn’t return requests for comment. Supervisor David Campos, who also has been seen by The Information using the app, wrote in an email: “Someone invited me to join, I didn't really think about it and don't really use it. Don't know much about the features.”

It’s unclear just how many San Francisco officials use the app. Telegram allows users to connect their phone contact lists with the app. A view of the app showed several supervisors and their aides had been “active.” In many cases, the app was used daily or hourly by those officials, aides and advisers.

“Telegram is for politics,” said John Elberling, a Telegram user and land-use activist in San Francisco who advises supervisors.

John Wonderlich, interim policy director for the Sunlight Foundation, an advocacy group for open government, said he expects a debate around public records to fire up as encrypted messaging apps continue to go mainstream. He said Blackberry’s pin-to-pin messaging system and the use of private email servers have typically been systems used by government officials to avoid public records rules.

“There’s something new here” with Telegram, he said. “This has been talked about a lot as something we will be concerned about. It makes sense it starts in San Francisco.”