News over the weekend that White House Press Secretary Sean Spicer is furious about leaks to the press led to some social media amusement by the politically attentive, because what happened during his private meeting with his own staff was also immediately leaked to the press. There were leaks about the effort to fight leaks.
On Sunday Politico reported that Spicer (accompanied by White House lawyers) brought in his staff and had them dump out their phones and tech devices—both those from work and personally owned—for inspection to find out if they’re responsible for leaks. And there’s also the matter of the tools they’re using to communicate with:
There, he explicitly warned staffers that using texting apps like Confide — an encrypted and screenshot-protected messaging app that automatically deletes texts after they are sent — and Signal, another encrypted messaging system, was a violation of the Presidential Records Act, according to multiple sources in the room.
The phone checks included whatever electronics staffers were carrying when they were summoned to the unexpected follow-up meeting, including government-issued and personal cellphones.
Spicer also warned the group of more problems if news of the phone checks and the meeting about leaks was leaked to the media. It’s not the first time that warnings about leaks have promptly leaked. The State Department’s legal office issued a four-page memo warning of the dangers of leaks, and that memo was immediately posted by The Washington Post.
So a good chunk of coverage of this incident is of the “Ha! Ha! They can’t stop the leaks!” variety. In general, the leakiness of President Donald Trump’s administration is a good thing. The public will have a better sense of what they’re up to. President Barack Obama’s administration unleashed pages upon pages upon pages of new regulations and expanded executive branch authority without a lot of media attention unless there were legal challenges. The Trump administration is not even going to be able to sneeze without a reporter offering a Kleenex.
But we do not want to ignore Spicer’s warning about how secretive, encrypted communications within the White House are a violation of federal law, because it does have potential implications. A government with staffers who use encrypted communication methods to leak information to the press is also a government with staffers who use encrypted communications methods to keep important discussions out of the hands of the press and the public as well.
It’s important to recall that the origins of the Hillary Clinton private email server scandal were rooted in concerns that State Department employees were using these secret backchannels to protect their communications from Freedom of Information Act requests.
So we end up in an awkward space where the lack of communication discipline can lead to two wildly divergent results—all at the same time: Information that the White House wants to keep private can get leaked to the press; but information the press and public should have the right to know about gets concealed.
It’s also worth noting, since I pointed this out with Clinton during the campaign, Trump has publicly taken a very dim view on citizens’ rights to privacy via encryption. When Apple resisted the FBI’s legal demands that the company weaken its own security systems so that the feds could attempt to break into the phone of one of the San Bernardino terrorists, Trump took the FBI’s side and called for a boycott of Apple.
This leak issue is an interesting instruction on the impossibility of reining in encryption as a tool to conceal communications. But it shouldn’t surprise us if the Trump administration attempts to do just that anyway. The administration is not happy about these leaks and we should not be surprised if they do everything in their power to try to track down and possibly even prosecute those who reveal information to the press and public.
Is there a solution to the dilemma that encryption both creates a platform for leakers and a mechanism for government secrecy? Probably the same solution libertarians and small government conservatives hammer over and over and over again: If the executive branch had much less authority to implement pervasive regulatory power over the citizens without the proper oversight of the other two branches of government, it would have much less incentive to be so secretive. Lobbying and cronyism that influence the regulatory state are bolstered in an environment where bureaucrats are free to make significant policy decisions without public awareness.