CREW received records that revealed a CBP staffer repeatedly inquired about whether deleted comments about certain CBP “cases” sent through the encrypted messaging app Wickr would be retrievable by IT specialists or via FOIA request, in what seems to be an effort to evade civil discovery.

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US Customs and Border Protection needs to be preserving records of conversations between officers, but a contract with AWS-owned Wickr, an encrypted messaging service known for its auto-burn message feature, raises questions about whether that’s happening. Following CBP’s failure to respond to a records request, CREW is suing CBP for records on their procurement, implementation and use of Wickr especially since any agency’s use of an auto-burn feature may violate the Federal Records Act.

CBP has a notorious record of human rights abuses and exposed texts from CBP agents show an environment of racism and cruelty within the agency. Worse, accountability for misconduct isn’t likely to come from within, given that CBP has routinely shielded agency decisions and agents’ misconduct from the public, including tampering with witnesses and altering crime scene evidence.

It is alarming, then, that CBP has a $900,000 contract with an encrypted messaging platform where agents could easily destroy all traces of problematic behavior or messages that corroborate reports of abuse with just the swipe of a finger. And from a legal standpoint, any use of the auto-burn function may also violate recordkeeping laws.

This wouldn’t be the first time the government’s use of auto-destroying messaging apps came under scrutiny. Under Trump, White House Senior Advisor and Trump son-in-law Jared Kushner came under fire for his routine use of unofficial messaging apps like Signal and Whatsapp, which also have similar auto-burn features, to conduct official business, and his failure to provide assurances that those records would be preserved.

While President Biden reversed a late-term Trump policy that would have allowed Kushner to preserve records by screenshot and has made some strides in committing to a more robust era of transparency, change at an agency level has proved slow, especially within DHS arms like CBP and ICE. The Biden-era CBP contract with Wickr does not provide more reassurances that record keeping is a priority for the agency, and in an agency already facing numerous accusations of human right abuses and misconduct, it is doubly important that the tools it uses bring more, not less, transparency.

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