Ministers face legal challenge over WhatsApp messages

Ministers in the UK government are facing a legal challenge from campaigners over their use of self-destructing WhatsApp messages who say that it is undemocratic, prevents transparency and that it may block ministers being held to account.

Ministers have been sending such messages on both WhatsApp and rival messaging app Signal who both tout their security as part of their selling point. Signal has long had a feature that allows messages to delete automatically and now WhatsApp has also added recently which ministers have taken advantage of.

Foxglove is bringing this legal challenge on behalf of campaigners The Citizens. Foxglove are a team of legal and technology experts who “stand up to the tech giants and governments, and stand up for a future where technology is used to benefit everyone, not just the rich and powerful.” Similarly, The Citizens are a non-profit organisation staffed by volunteers campaigning for accountability.

They claim the action centres around The Public Records Act 1958 which requires officials to review communications of ministers regarding the formulation of policy to decide whether it should be archived in the public record. If ministers use self-destructing messages on WhatsApp or Signal then that simply isn’t possible. Further to this, there has been a lack of response to freedom of information requests seeking to understand how the feature has been used by ministers.

Further to this, there are fears that ministers are using the feature to avoid accountability for their actions and Foxglove are threatening to bring a judicial review to ban the practice. Their director Cori Crider said: “The basic point is that privacy is for the citizen and transparency is for the government. This government is amassing more and more data on all of us and we have less and less information on them. That has the democratic bargain exactly backwards.”

Guidance was released in 2013 that a record only needs to be retained “if it is needed for substantive discussions or decisions in the course of conducting business” with the Public Records Act 1958 requiring that ministers “take steps” to ensure archiving of WhatsApp messages happens where required. The Information Commissioner’s Office also declared in 2011 that digital messages (such as WhatsApp or emails) on private accounts of ministers are also subject to freedom of information requests. This was in response to the then education secretary, Michael Gove and Dominic Cummings using private email accounts to discuss party matters.

The very nature of self-destructing WhatsApp messages thought defeats this requirement and The Citizens are concerned that ministers are exploiting the feature with it being near impossible to enforce the ruling. A spokesperson said: “Government business is being conducted under a cloak of secrecy enabled by the tech platforms. The only way we can have any hope of holding power to account or even simply maintaining the historic record is through transparency.”

Ministers are liable and could be prosecuted for actively deleting WhatsApp messages after a freedom of information request is sent out but whether applies to self-deleting messages is unclear. A spokesperson for the cabinet said: “Records of official communications are retained in accordance with the relevant publicly published guidance. There are appropriate arrangements already in place and this is kept under periodic review.”

Questions will certainly be raised about whether the government is adhering to the democratic principles they are obliged to uphold. Further to this, they are also pushing big tech companies to permit them access to the otherwise encrypted messages sent on their services and any judicial review will put this under further scrutiny.

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