Public access to government-related information is essential in a democracy. The public expects state and local governments to function in an open and transparent manner to ensure accountability. All fifty states have adopted statutes that provide public access to government-related information. However, these statutes have not kept pace with changing technology. The emerging use of ephemeral messaging apps by state and local government officials presents an especially difficult problem. Ephemeral messaging apps are typically used on personal electronic devices, such as privately-owned smartphones. Unlike traditional text messages, however, ephemeral messages cannot be stored and subsequently accessed by the public. Rather, ephemeral messages self-destruct shortly after they are accessed by the recipient. Thus, it is not clear if ephemeral messages are public records—even if the messages pertain to government-related actions. A pending lawsuit in Missouri that pertains to the use of an ephemeral messaging app by former Governor Eric Greitens and members of his staff may be the first case in the nation to address this issue at the state and local level. Two recent state supreme court decisions from California and Washington concluded that traditional text messages that pertain to government-related actions may be public records even when they are retained on personal electronic devices or on third-party servers. These court decisions may provide some useful guidance with respect to ephemeral messages, but there are some key distinctions between traditional text messages and ephemeral messages. To avoid ambiguity and litigation, state legislatures should revise their public records statutes to make it clear that ephemeral messages that pertain to government-related actions are public records. If ephemeral messages cannot be stored and retrieved to ensure public access to this information, state legislatures should restrict the use of ephemeral messaging apps by public officials.
CU Commons Citation
Starman, Kurt J.
"Now You See It, Now You Don't: The Emerging Use of Ephemeral Messaging Apps by State and Local Government Officials,"
Concordia Law Review: Vol. 4
, Article 9.
Available at: https://commons.cu-portland.edu/clr/vol4/iss1/9