October 26, 2021

A letter to CBP’s Chief Information Officer from the National Archives’ Chief Records Officer voices concern about CBP personnel’s use of the messaging applications WhatsApp and Wickr. (original link) Laurence Brewer’s letter seeks “to ensure that CBP is communicating to all employees that they cannot use these applications to circumvent their records management responsibilities.”

The letter, which requests a report from CBP about these apps’ use, cites findings from an October 2021 DHS Inspector-General report about improper CBP targeting of U.S. citizens during 2018-19 “migrant caravans.”

With respect to WhatsApp, the OIG report notes that their ability to determine whether proper processes and procedures were followed was hampered by a failure to retain communication records, including records in WhatsApp (page 4). Further, the OIG report states that there are “instances of CBP officers not documenting information they obtained during caravan-related inspections” (page 12); that CBP officials did not retain communication records (page 17); and that “the CBP officials failure to retain WhatsApp messages likely violated DHS and CBP records retention policies because the messages were information that CBP created or received in carrying out its mission and contained substantive information that was necessary to adequately and properly document the activities and functions of the CBP officials” (page 28).

Additionally, the OIG report found that during this operation, it is not even clear if CBP policies permit the use of WhatsApp.

With respect to Wickr, NARA is concerned about the use of this messaging application as it has the capability to auto-delete messages after a specified period of time has passed. In light of the information in the OIG report, NARA is concerned about agency-wide deployment of a messaging application that has this functionality without appropriate policies and procedures governing its use.

NBC News reported that CBP had spent more than $1.6 million on Wickr, which is owned by Amazon, since 2020. The nonprofit watchdog group Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against CBP in March 2022 after CBP failed to respond to a records request about its use of Wickr.

— Laurence Brewer, Letter to Eric Hysen, Chief Information Officer, Customs and Border Protection (Washington: National Archives and Records Administration, October 26, 2021) https://www.archives.gov/files/records-mgmt/resources/ud-2022-0001-dhs-cbp-open-letter.pdf.

Ben Goggin, Louise Matsakis, “Border Patrol’s use of Amazon’s Wickr messaging app draws scrutiny” (United States: NBC News, April 3, 2022) https://www.nbcnews.com/tech/tech-news/border-patrols-use-amazons-wickr-messaging-app-draws-scrutiny-rcna21448.

— “CREW sues for records on CBP contract with Wickr, ‘auto-burn’ encrypted messaging app” (Washington: Citizens for Responsibility and Ethics in Washington, March 2, 2022) https://www.citizensforethics.org/legal-action/lawsuits/crew-sues-for-records-on-cbp-contract-with-wickr-auto-burn-encrypted-messaging-app/.

Sector(s): Border-Wide

Agency(ies): CBP

Event Type(s): Evading Oversight

Accountability Status: Lawsuit or Claim Filed

Victim Classification: