Now, citing a “continued threat to the preservation of yet more records that contain sensitive government information,” the nonprofit government watchdog behind the original litigation has amended its lawsuit with several additional facts. And, it is pushing the judge overseeing the case for a more thorough and lasting court order.
“This case concerns the unlawful destruction of government records,” the motion reads. “Defendants’ failure to initiate recovery actions for lost or destroyed communications conveying official government business violates the Federal Records Act, thwarts government transparency, and threatens national security. Judicial intervention is required to redress Defendants’ destruction of government records by preserving remaining records and preventing further destruction of government records.”
The original Signal scandal was over just one group chat.
Since then, however, media reports have revealed that “at least” 20 such group chats have been used “to conduct official government business, including on national security and foreign policy issues related to Ukraine, China, and Gaza,” according to the motion. And, during testimony before the Senate Select Committee on Intelligence in March, Director of National Intelligence Tulsi Gabbard testified that Signal is “pre-installed” on government-issued devices.
Use of the app during the first-reported group chat — and the “seemingly unrecoverable” nature of many messages sent during that chat — is bad enough, according to the injunction request.
“The risks inherent in this practice are shown by Defendants’ failure to preserve the entirety of a singular chat,” the filing reads, “despite this Court ordering Defendants to make best efforts to do so.”
But the prevalence of Signal use — and the continued use of the auto-delete feature — suggests ongoing and intentional violations of federal law, transparency organization American Oversight claims.
From the motion, at length:
Defendants hold some of the most powerful positions within the executive branch of American government, and American Oversight, the public, and Congress all have statutory rights to request access to public records in order to hold the powerful accountable for their conduct while in office.
The public interest weighs heavily in favor of ensuring that Defendants uphold their legal obligations by preserving sensitive records like these. This is especially true in light of Defendants’ unlawful destruction of evidence and stonewalling in response to the Court’s requests for information about Defendants’ preservation practices, which reflect Defendants’ intent to shield their actions from public scrutiny. The Court can order preservation of the records at issue before they are lost. Delay in that preservation will result in permanent harm.
The heart of the lawsuit is a perhaps largely banal claim: that written records of federal government actions conducted by Cabinet members and Cabinet-level staff are subject to the FRA. While this might be uncontroversial, the plaintiffs say the government’s use of Signal is upending the reach of the law passed in 1950. And, the group alleges, the particular way Signal is being used is illegal.
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To that end, the group’s lawyers are imploring the court to act.
“Some of Defendants’ Signal messages have already been lost or destroyed, and others will be imminently destroyed in violation of the FRA without further judicial intervention,” the motion goes on. “Under the FRA, ‘[n]o records may be ‘alienated or destroyed’ without authorization of the Archivist and unless the records ‘do not have sufficient administrative, legal, research, or other value to warrant their continued preservation by the Government.’ Autodelete settings are plainly inconsistent with this standard.”
The past-tense loss of messages — and potential future-tense loss of messages to come — is not merely a violation of the little-known FRA, the plaintiffs allege; the often-baked-in losses of Signal messages also likely violate a much-better-known sunshine law.
“Using a system that automatically deletes messages without regard to their contents is no mere ‘technical’ violation of the FRA,” the motion continues, “it represents an effort by the administration to eliminate the oversight and checks on executive power envisioned by both our constitutional order and the Freedom of Information Act (FOIA).”
The nation’s premier transparency law is American Oversight’s bread and butter, so the knock-on effects of FRA violations become FOIA violations — which directly harm the group, according to the filing.
“Without a preliminary injunction, Defendants’ past and continuing violations of those obligations will continue to harm American Oversight’s interest in the preservation of federal records without consequence,” the motion goes on. “Those records are likely responsive to American Oversight’s pending FOIA requests and are essential to American Oversight’s ability to hold Defendants’ accountable for their failure to comply with their obligations.”
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In the case, U.S. District Judge James Boasberg issued a temporary restraining order that expired in April. In issuing that earlier order, which was extremely limited in time and scope, the judge mused that both parties would likely be able to “reach common ground” because discovery was not an issue.
After several intervening news cycles, those hopes appear to have been dashed — though American Oversight is still not using the present case to try and force the government to produce the Signal group chats.
The group is, on the other hand, adamant the law was broken, is still being broken — and likely being broken intentionally to defeat outsiders from subjecting the Trump administration to “the basic purpose of FOIA.” To that end, the plaintiffs are asking the court to issue a preliminary injunction that deems all “messages and communications sent and received by Defendants over Signal” public records under the FRA and order the government to preserve “all Signal messages sent or received by Defendants in the course of conducting government business since the date each agency-head Defendant took their respective offices.”
