In response to allegations that some state employees were using text messaging to avoid their conversations being captured by public-records requests, Maine Gov. Paul LePage recently outlawed texting to conduct state business. But a number of public-sector CIOs believe the harsh reaction could cause further problems down the road.

Speaking to Government Technology on condition of anonymity, one state CIO likened text messaging to telephone conversations that happen in the course of state business every day that aren’t recorded and don’t become part of the public record. The CIO believed that taking away texting could start a dangerous precedent that may cost states a valuable means of communication.

“It’s a communications tool just as a phone call, but if you suddenly start recording it … this tool now has a real expense associated with it, because we have to deal with data storage, search and retrieval, all of the things that go with the public records issue and e-discovery,” the CIO said. “It would preclude us from having [texting] anymore because you’ve driven an expense into it that I can’t really justify.”

State employee text messages in Maine about public business are subject to the state’s Freedom of Access Act. But messages sent on certain smartphones, such as BlackBerry devices, aren’t stored by state servers and are virtually impossible to recover.

That became a problem in the state last month, when a former employee of the Maine Center for Disease Control and Prevention was allegedly told by supervisors to use texts to communicate because they couldn’t be obtained to fulfill public-records requests.

According to a report in the Portland Press Herald, LePage spokeswoman Adrienne Bennett told the news outlet in early March that the state didn’t have a policy prohibiting the use of secret message systems. That changed last week, however, with LePage’s ban on texting.

Maine’s new policy requires state employees to use the its email system for business conducted through electronic communication so that the messages are retained. In addition to text messages, the new policy also requires that “unofficial email” and “Instant messaging” are also prohibited. 

Government Technology reached out to LePage and Maine CIO Jim Smith for comment on the policy. Peter A. Steele, director of communications for LePage, responded with an email saying the amended policy is a reinforcement of what is already outlined in the Maine Freedom of Access Act.

Steele explained that the state has no way to prevent employees from sending texts on state-owned or personal devices, so enforcement of the policy will only occur when a violation is brought to the attention of the governor’s office.

Jonathan Reichental, CIO of Palo Alto, Calif., called Maine’s ban on certain forms of electronic communication “very draconian” and said texting wasn’t the root of the problem in the state. He believes that whoever allegedly told the state employee to use texting to discuss state business in order to avoid public records discovery should be reprimanded and leadership should be more accountable for their actions.

“First they ban text messages, next it’s going to be social networking and Twitter, and [then] it’s going to be Web-based email versus on-premises email – where does it stop?” Reichental said. “It has to come back, in my view, to ethics. I can’t imagine me coming up with a directive in Palo Alto saying you can’t use text messaging for city business.”

Options

Texting being used to skirt public-records laws isn’t new. Orange County, Fla., faced a similar issue in 2012, when county commissioners were accused of texting with opponents of a ballot referendum during public hearings on the measure. When the messages were sought by local media outlets and supporters of the measure, it was discovered that some had been deleted.

Orange County CIO Rafael Mena was caught in the crossfire. Since wireless carriers didn’t retain the texts, he had to go into each phone and see if he could recover the data. He found some of the texts, but others were simply gone.

In the aftermath, Mena developed a training program so that county employees are crystal clear that they are responsible for retaining work-related texts – even on personal smartphones. The employee can forward the text to the county’s email system for storage. It’s also understood that law enforcement can seize personal phones for forensic work if an issue arises concerning county business.

For county-owned devices, a system was introduced last year that stores incoming and outgoing text messages in a database for easy retrieval. It didn’t come cheap, however. In an interview with Government Technology, Mena revealed the system cost $95,000 to install and the county pays approximately $20,000 per year for support services.

County employees who need to use smartphones for public business are issued Android phones. The devices are equipped with an app from MobileGuard Inc., that monitors and archives text messages and other data, making retrieval for public records requests easier.

If an extensive archival system isn’t in the financial cards, government agencies could also take the most basic of steps – negotiating with their wireless provider to turn off texting on government-owned devices completely.

But Reichental cautioned that may not be enough to solve any potential text messaging abuses. For example, WhatsApp, a cross-platform messaging application recently acquired by Facebook, doesn’t require the texting technology commonly used on smartphones. It just uses an Internet connection.

Given the rapid advancement of communications technology, Reichental said he felt enforcement of any ban on texting is uncharted territory, at least from a tech perspective.

“One of the big trends today is the extent to which we’re losing control of our environment – BYOD, consumer apps and all of that,” he said. “So what could a CIO do to stop an employee using a personal phone to text? I don’t think there’s anything you can do.”

Brian Heaton  |  Senior Writer

Brian Heaton is a senior writer for Government Technology. He primarily covers technology legislation and IT policy issues. Brian started his journalism career in 1998, covering sports and fitness for two trade publications based in Long Island, N.Y. He's also a member of the Professional Bowlers Association, and competes in regional tournaments throughout Northern California and Nevada.