The Department of Homeland Security will immediately stop wiping mobile devices of high-level officials and political appointees without backing them up and will launch a 30-day review of policies and practices for retaining text messages and other electronic messages.
The move, which was announced as temporary, comes after weeks of heavy criticism over lost text messages at the Secret Service and revelations that the phones of top former DHS officials Ken Cuccinelli and Chad Wolf were wiped after they left office.
The moves were announced in a memo sent to department leaders on Thursday.
The memo stressed that the items to be retained include email, social media messages, instant messages and text messages.
“DHS agencies and offices are directed to preserve either the actual mobile devices (and accompanying access information) or complete fully accessible backups of all device content for all members of the Senior Executive Service or equivalent and political appointees, whenever such an employee departs or would have their device replaced or wiped for any reason,” Chief Information Officer Eric Hysen and General Counsel Jonathan Meyer wrote in the memo.
A working group at Homeland Security will review best practices in federal and private sector organizations and provide recommendations to the department regarding training for employees, options for automating backing up text messages and chats, the possibility of restricting electronic messages and department policies for retaining electronic messages.
“As technology continues to rapidly evolve, the working group will ensure DHS continues to comply with all applicable laws, regulations, and guidance so as to fully meet the expectations of Congress and our other oversight entities, other key stakeholders, and the American public,” Chief Information Officer Eric Hysen and General Counsel Jonathan Meyer wrote in a memo to DHS leaders.
Department officials familiar with how the agency will implement changes told CNN that under current policy, text messages pertaining to agency business must be retained if there isn’t another record of the information.
A 2018 DHS directive regarding text message retention notes that not all text messages are considered official federal records and that “any communication in which an Agency decision or commitment is made or where an action is committed to, that is not otherwise documented, needs to be captured.”
But for nearly all department employees, emails are retained automatically and over a longer period of time. And for higher-level employees, such as political appointees and top deputies, records retention rules are more stringent than for regular employees.
For example, all emails for those in the top posts are preserved. But it was left to individuals to decide whether to preserve text messages. So DHS is now exploring shifting that responsibility from the individual to instead automate retention. The working group will focus on finding options for possibly automatically retaining those communications.
The officials noted the technology around texting is different than email, largely because of systems like encrypted IMessage, which presents a challenge in automatically capturing communications.
The officials also told CNN that DHS is exploring restricting text messages or other chats. Secret Service Director James Murray issued a memo to employees on Wednesday indicating that texting may be disabled on that agency’s mobile phones.
Pentagon issues memo to senior leaders reminding them to retain federal record, including text messages
The DHS memo was issued a day after Deputy Secretary of Defense Kathleen Hicks instructed Defense Department leaders that “users of DoD mobile devices that under existing DoD instructions, DoD users are required to retain text messages that qualify as federal records,” acting press secretary Todd Breasseale said in a statement Thursday.
American Oversight, a third-party watchdog organization, requested cell phone records from top DoD officials who were in office when the January 6 Capitol attack occurred, including former Secretary of Defense Chris Miller, former chief of staff Kash Patel and former Secretary of the Army Ryan McCarthy. Their cell phone records were wiped when they resigned from their positions at the end of January 2021, according to court documents.
“Retention of records as required by the Federal Records Act is a solemn responsibility and legal obligation for all federal employees, civilian and military,” Hicks said in the memo. “DoD personnel are reminded that … users must retain text messages that qualify as records under the Federal Records Act.”
The memo further established that “effective immediately” all mobile device service providers in DoD “will capture and save the data resident on DoD-provisioned mobile devices when devices are turned in by users.”
Hicks directed the DoD Chief Information Officer and DoD General Counsel to “assess DoD policies and procedures” for ensuring Federal Records Act compliance. The CIO and General Counsel are required to report back to Hicks in 30 days “with any further recommended actions.”
“The department will be transparent with Congress and the public on records retrieval and stewardship,” Breasseale said in the statement.
Former Secretary of the Army Ryan McCarthy’s and former Undersecretary of the Army James McPherson’s cell phones were “not properly archived,” a separate defense official told CNN. “There was no nefarious intent,” behind the records not being archived, the official added.
Separately, Chief of Staff of the Army Gen. James McConville and Director of the Army Staff Gen. Walter Piatt had their phones replaced in the spring of 2021, as a part of standard protocol.
“All of the Army officials did exactly what” they were told to do, the official said.
Miller, Patel and McCarthy have all been viewed as crucial witnesses for understanding the government’s response to the January 6 Capitol assault and Trump’s reaction to the breach. There is no suggestion that the officials themselves erased the records.
American Oversight is now calling for a “cross-agency investigation” by the Justice Department to investigate destruction of the materials.
“It’s just astounding to believe that the agency did not understand the importance of preserving its records — particularly [with regards] to the top officials that might have captured: what they were doing, when they were doing it, why they were doing, it on that day,” Heather Sawyer, American Oversight’s executive director, told CNN.
CLARIFICATION: This story has been updated to reflect that the wiping of mobile devices of high-level DHS officials is temporary. The story also has been updated with additional details.
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