Heyyyy Minister! The ethics of WhatsApp chats

Justice Minister Edward Zammit Lewis has reportedly exchanged 700 WhatsApp messages between January and October 2019 with Yorgen Fenech, a major player in the energy sector who by November 2018 had already been exposed as the owner of the nefarious, secret company 17 Black, a company identified as the target client for Keith Schembri’s Panama company.

November 2018 was a cut-off period for politicians who enjoyed the patronage or attention of Fenech, one of Malta’s richest businessmen who now stands accused of masterminding the assassination of journalist Daphne Caruana Galizia.

Zammit Lewis, who was appointed EU Affairs Minister in July 2019 after failing to make it to the Cabinet after the 2017 election, insists that that he had cut off contact with Fenech “well before” he had been arrested for the murder of Caruana Galizia. But was an ethical line crossed by the sheer familiarity between a Cabinet member and a leading economic player already suspected of shady dealings due to his offshore investments?

The degrees of familiarity

The use of private email and messages through applications like WhatsApp between ministers is currently unregulated by the present code of ethics for ministers and MPs.

But a code of ethics proposed by standards commissioner George Hyzler does address the ethical problems posed by unofficial communication between ministers and lobbyists, even if this is limited to “official business” and “relevant matters” – which leaves friendly chats between people in power and leading businesspersons a grey area.

Still, if the alleged WhatsApp conversations took place after it emerged that Yorgen Fenech was the owner of 17 Black, the communication is overruled by a generic clause in the proposed code of ethics, namely that “ministers are required to avoid associating with individuals who could place them under any obligation or inappropriate influence”.

Moreover, the code suggests that even if the conversation is inconsequential, they should only meet “persons with an interest in obtaining permits, authorisations and other benefits from the state” in an official setting and “in the presence of officials”. In this case, Yorgen Fenech was clearly a major actor both in the property, tourism and energy markets with a direct interest in government policies regulating both sectors.

But Zammit Lewis has already made it clear that he had never had any legal or commercial relationship with Fenech, or any other form of relationship through which he may have benefitted in any way.

Grooming politicians?

While “relevant” and “official” matters may not have been discussed in WhatsApp exchanges, private communication on personal matters may to be seen as an attempt by a leading businessperson to groom and wield influence on a high-ranking Cabinet member.

One of the tricky aspects of the proposed code of ethics is the ban on “unofficial email accounts” and one would presume other applications like WhatsApp is limited to “official business”.

The code clearly states that “ministers shall not conduct official business through unofficial email accounts.” The obligation to log such contacts with lobbyists is also extended to “correspondence involving unofficial email accounts, and messages through other applications”, as well as “informal meetings”; but this is only applicable to “relevant communication”. In this context, the degree of familiarity would be even greater if it emerges that Zammit Lewis and Fenech met over meals during 2019, even after the businessman was exposed as the owner of the once-secret offshore company 17 Black.

In Hyzler’s proposed code of ethics “relevant matters” include the “initiation, development or modification of any public policy, action or programme.” The preparation or amendment of laws and regulations, the award of any grant, loan or other form of financial support, and any contract or other agreement involving public funds, land (including concessions of public land) or other resources. But communications concerning
”private affairs” is not deemed to be a “relevant” communication.

This raises the question: how should one address cases of over-familiarity between leading business operators and ministers, especially inside the Maltese environment of incestuous friendships and cosy networks. Could not this over-familiarity also bear on political decisions? But what if the friendship pre-dates the assumption of political office? And if that is the case, doesn’t the public have a right to know the degrees of familiarity that exist between ministers and leading economic players?

The standards commissioner has made it clear that the code does not seek to regulate the conduct of ministers and MPs “in their purely private and personal lives”, but make one important exception relating to conduct “which adversely affects the reputation and integrity of the House of Representatives.”

In this case, if the communication occurred after Yorgen Fenech was confirmed as the owner of 17 Black, a secret company mentioned as a client of secret companies owned by other politicians, one may well argue that in such case over-familiarity did impinge on the integrity of the House. The fact that Fenech was later arrested as the mastermind of the assassination of a journalist, is in itself a warning against familiarity with business people engaged in shady deals.

An iconic photograph of former US Secretary of State Hillary Clinton using her BlackBerry while wearing sunglasses on a military plane in 2011 prompted a recordkeeping official in her office to inquire about whether Clinton had been assigned a State.gov email address

From private to official: Clinton’s emails

One major issue related to the use of private emails is linked to the obligation of Cabinet members and politicians worldwide to record relevant conversations due to security issues. In the USA using messaging services for official government business could violate the Presidential Records Act, which requires that nearly all official White House correspondence be preserved.

During her tenure as United States Secretary of State, Hillary Clinton drew controversy by using a private email server for official public communications, rather than using official State Department email accounts maintained on secure federal servers.

The controversy was a major point of contention during the 2016 presidential election, in which Clinton with an FBI investigation concluding that Clinton had been “extremely careless” even if no charges were filed because Clinton did not act with criminal intent.

Even Joseph Muscat was revealed to have been using his personal josephmuscat.com email address in various acts of official and personal correspondence.

WhatsApp diplomacy: widespread but security risk

Amazon CEO Jeff Bezos had his mobile phone “hacked” by a number linked to Saudi Crown Prince Mohammed bin Salman in 2018. Unnamed expert sources told The Guardian that it was “highly probable” that an infected video file sent from the Saudi heir to Mr Bezos over WhatsApp was the source of the infiltration.

International case law also suggests that WhatsApp conversations involving government officials could fall under the scope of Freedom of Information requests. In 2011 Ireland’s Information Commissioner’s Office (ICO) published new guidelines making it clear that FOI laws cover relevant information even when stored or sent on private accounts or devices. Subsequently the contents of a government WhatsApp group set up to manage media messaging around the Brexit result were released to RTÉ News.

In Australia back in 2016 security experts raised concerns about Prime Minister Malcom Turnbull and senior government ministers sending private and confidential information via WhatsApp. This is because WhatsApp also allows files to be shared and transferred between users. This has implications for government, especially if used by ministers or staff with access to classified information.

Earlier this year, a European Commission told its staff to switch to the encrypted Signal messaging app in a move that’s designed to increase the security of its communications. Signal is generally considered to be one of the most secure messaging apps available. It’s open source, uses end-to-end encryption by default, and unlike WhatsApp, it doesn’t store any message metadata or use the cloud to back up messages.