In a state many consider to be a leader when it comes to government transparency and public records access, secretive communications software has been widely adopted among prominent Members of the Florida Legislature, their political allies and operatives, lobbyists, staffers, and even some members of Florida’s capital press corps. And it’s all perfectly legal.
Just as is happening in Washington D.C., The Capitolist has confirmed the identities of a number of high-profile elected officials in Florida, public figures, and Tallahassee insiders who are using the secretive apps, which leave no trace of a message after the user reads it, and thus qualifies as a “transitory communication” that is legally exempt from public records laws. Florida law still prohibits such communication if it would violate “open meetings laws” where public business is discussed between certain gatherings or in certain communications between public officials.
Widely available smartphone apps like Confide, Signal and even SnapChat all rely on an “instant-delete” feature after the intended recipient has reviewed the message, making it impossible for the message to be swept up in a public records request under Florida Statute 119. But both Confide and Signal take things a step further. Both feature end-to-end encryption that prevents a third-party from intercepting the message, and Signal boasts that its code is 100% open source, meaning third parties can audit the code to verify that they aren’t playing any games with encryption or secrecy. Another popular security feature, especially in the wake of widespread email hacking during the 2016 election cycle, is that some of the progams prevent a recipient from taking a screenshot of the message and having it later turn up elsewhere.
While SnapChat notifies the sender if a recipient takes an unauthorized screenshot of the message before it is deleted, Confide tackles the problem a different way, by limiting how much of a given message is displayed at any one time. The recipient traces his or her finger down the screen revealing one line of the message at a time, making screenshots much more difficult.
Curiously, all of the programs search your contact list to find others you may know who are users of the app. There is nothing that prevents journalists from checking to see if two local county commissioners, for example, are both users of the same encrypted messaging software – and if those two commissioners use the messaging app to discuss public business, they would be in direct violation of the law. Under Florida’s Consitution, however, two legislators are permitted to discuss state business privately. It is only when more than two gather secretly to discuss state business that a violation may occur.