Michigan Lawmakers Call for Change in Encrypted Police App

(TNS) — Lawmakers from both parties are calling for changes to state law and/or policy after the Free Press revealed that top Michigan State Police officials have downloaded an app onto their state-issued phones that can put their text messages out of reach of the Michigan Freedom of Information Act and discovery requests in civil lawsuits.

And attorney  James Fett  says he has screenshots from August showing at least 18 active and high-ranking MSP officers and civilians had the Signal encryption application installed on their state-issued phones — not just the five identified as a result of his lawsuit against the state.

"I think it's outrageous," said state Sen.  Jim Runestad , R- White Lake, a member of the Senate appropriations subcommittee on military affairs and state police.

"This is something that causes the public to lose faith in the Michigan State Police because there are so many conversations that they can have to the detriment of individuals," Runestad said.

If text messages exchanged by high-ranking police officials can all be "scrubbed clean," then "all kinds of mischief can go on, and the public is never going to know about it."

It's a controversy in which new and inexpensive technology designed to ensure user privacy is colliding with the public's right to scrutinize government communications. Democratic Gov.  Gretchen Whitmer , who was elected in 2018, has said government transparency is one of her priorities.

Signal, which is a free-to-the-user app funded by grants and donations, says on its website: "We can't read your messages or listen to your calls, and no one else can either." Signal features "end-to-end" encryption, meaning texts sent on state phones using Signal bypass the state server and, once deleted, leave no record on either the phone or the state server.

Though state employee use of the Signal app came to light through a lawsuit against the MSP, there is no way of knowing whether employees in other state agencies are also using it. The state has made no effort since the Free Press broke the story Jan. 22 to determine whether employees at MSP or any other state agency are using it, said  Caleb Buhs , a spokesman for the Department of Technology, Management and Budget.

Though "we are reviewing our policies ... we do not block the download of apps right now," Buhs said. "As of right now, I don't have an answer for you as to what is legitimate use. We just don't know what other agencies need all the time. (The MSP's) legitimate use may not be the same for another agency."

Fett is suing the MSP and its director, Col.  Joseph Gasper , on behalf of  R. Michael Hahn , an MSP inspector who was fired last year, and Inspector  Michael Caldwell , who was demoted from the rank of captain, purportedly for the way they handled a personnel matter. Hahn and Caldwell allege they were retaliated against for speaking out against what they say are unlawful racial and gender hiring and promotion preferences the department has adopted as it seeks to increase its diversity. The state defendants deny the allegations.

Fett, of Pinckney, said he was suspicious after he requested through legal discovery copies of text messages exchanged among the MSP top brass related to the firing and demotion, and the defendants turned over very little.

Through the court, Fett asked the MSP to admit that Gasper, MSP records section manager  Lori Hinkley , Lt. Col.  Kyle Bowman , Maj.  Emmitt McGowan , Maj.  Beth Clark , 1st Lt.  Brody Boucher  and 1st Lt.  Jason Nemecek  had each downloaded and used an instant messaging application with end-to-end encryption on their state-issued cellphones.

The state initially admitted all seven officials had used such an app on their state phones, but in an amended response Jan. 21, after the Free Press raised questions about the app use, it denied that Gasper or Hinkley had used the app.

The requests and responses did not name the encryption application, but Hahn said he knows top MSP officials have been using Signal.

Fett said that when someone downloads the Signal application on to a cellphone, there is an immediate request for access to the person’s contact list. If access is granted, Signal generates a list of contacts who also have the Signal app installed. He said the names of 18 MSP officials popped up Aug. 12 when someone with connections to the MSP, whom Fett would not identify, downloaded Signal onto their phone. In each case, the contact number listed for the MSP officials was their state-issued cellphone, he said.

In addition to Gasper, Hinkley, and the five officials the state has admitted have used the encryption app, the names of still-active MSP officials that appeared were: Lt. Col.  Chris Kelenske , who is an MSP deputy director, Maj.  Mike Krumm , Capt.  Matt Bolger , Capt.  Tom Deasy , who heads the transparency and accountability division, Capt.  Dave Sosinski , Capt.  James Grady , Capt.  Phil Menna , Capt. Stephen O’Neill,  Nancy Becker-Bennett , who heads the grants and community services division, Inspector  Mike Johnson , and F/Lt.  Scott McManus , who heads the executive protection section responsible for the governor's security detail, Fett said.

Fett, who provided copies of the screenshots to the Free Press, said he also has a date-stamped video of Signal being downloaded Aug. 12 and the names of the MSP officials appearing once the contact list was accessed.

On Monday, Banner again denied that Gasper or Hinkley had downloaded or used the Signal app on their state phones. She did not comment on the other names put forward by Fett.

"For your background, I would note that the screenshots are based on the individual’s contact list in their phone," Banner said. "Therefore, it would only be as accurate as their contact list."

She otherwise declined to comment, citing the ongoing litigation.

Runestad said it is his understanding that protocols and technology are already in place for the MSP to use encryption when necessary for sensitive investigations, without bypassing the state server and potentially evading FOIA.

"I'm on appropriations for the state police," he said. "I am going to be asking them a lot of questions about this. A lot of questions about their hiring and promoting practices. There's a lot that they're going to have to address in the next appropriations subcommittee hearing."

State Sen.  Tom Barrett , R- Charlotte, chairman of the Senate appropriations subcommittee on military affairs and state police, said he too is concerned.

"I have concerns about any state agency, especially our top law enforcement agency in the state, circumventing the laws about open, transparent record-keeping," Barrett said.

The Democrat on the subcommittee, Sen.  Adam Hollier  of Detroit, said it appears to be a case in which state law and policy have not kept pace with technology.

"Are text messages on the record?" Hollier asked. "(Former Detroit Mayor)  Kwame Kilpatrick  (whose downfall and criminal convictions were closely related to publication by the Free Press of text messages he sent and received) might have thought they were not. The line, I think, needs to be clarified, and I don't think that has been effectively done over the last 10 years."

The MSP has a right to communications that are protected from detection by those under investigation and the public also has a right to know about government business, Hollier said.

"If we want to hold people accountable, we have to put them in a position where they can be successful, and we have not done this," Hollier said. "We need to modernize our laws."

State Sen.  Jeremy Moss , D- Southfield, a strong proponent of state government transparency who has sponsored a package of bills to expand FOIA to the governor's office and the Legislature, said the key issues for him are retention and disclosure, not necessarily which technology is being used.

Moss said he can envision many circumstances — including recent armed demonstrations at the Capitol — where the MSP would need to use encrypted messages in real time to ensure security.

That is OK "as long as those messages are subject to retention and disclosure" at a later date, he said.

Since technology is ever-evolving, state law and policy must be constantly refined to "make sure someone can't go around FOIA because an app allows them to," Moss said.

Attorney General  Dana Nessel , who is charged with enforcing the state FOIA law, had no comment Monday, spokesman  Ryan Jarvi  said.

A spokeswoman for Whitmer, who was initially a defendant in the MSP lawsuits brought by Fett but was dismissed from the cases in August, did not respond to a request for comment.

"This is the kind of stuff that the governor ought to be ripping the can wide open and looking inside and saying, 'How did this happen. Why is this happening? Let's not have this lack of transparency,' " Runestad said.

"Unless you can tell me different, I haven't heard anything out of her."

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