Two Missouri lawyers have sued the governor’s office over its use of Confide, an ephemeral messaging mobile app, which they say is in violation of state public records law.

The two men are set to appear before a county judge on Friday to ask for a temporary restraining order that would bar current and future use of such apps by the governor and his staff. Lawyers representing Governor Eric Greitens say that such a move is unwarranted.

Confide, like Signal and other popular encrypted-messaging apps, auto-deletes messages after a certain period of time, making automated record-keeping of those messages very difficult, if not impossible. Use of such apps by public employees for official business is almost certain to run afoul of transparency laws.

Late last year, after reporting by the Kansas City Star revealed the use of Confide by Greitens and several members of his staff, the two attorneys, Mark Pedroli and Ben Sansone, filed a public records request to learn more. The same day the lawsuit was filed, the Missouri Attorney General’s Office also opened an official investigation into the issue.

By early January, Sarah Madden, a special counsel for Greitens, responded that it would take time, perhaps up to 20 days, to provide a "response or a time and a cost estimate."

This Missouri suit, Sansone v. Greitens, appears to be one of the first, if not the first such lawsuit involving a state-level government agency and its alleged use of such a messaging system.

"You can't have civil liberties if you don't know what the government is doing with regard to the Fourth Amendment," Mark Pedroli, the lawyer representing Sansone, told Ars. "There [are] people who are Second Amendment people who think the government maintains a gun owner list and various things. Getting access to those documents alleviates suspicion and paranoia and tells you the truth. It's wildly important that government officials not communicate through ephemeral communication devices. We need a paper trail. That's what we want."

Greitens has been accused of secrecy previously: in September, his office refused to disclose the number of users he had blocked on social media.

The Star reported that Greitens has "displayed a penchant for secrecy that alarms open-government advocates" over lobbyist donations and other issues.

As the St. Louis Post-Dispatch reported, on January 25, Greitens' office formally refused Pedroli's Sunshine Act request to find out when Confide or any similar app was downloaded onto government phones. Instead, the governor's office cited a state secrecy law normally invoked in terrorist cases.

Parker Briden, a spokesman from Greitens' office, did not respond to Ars' request for comment.

Just the facts, ma’am

Gabriel Gore, a lawyer representing Greitens, said in a Tuesday court filing that the activist St. Louis County lawyers have no standing to bring the case in the first place as they have not been harmed by the governor's actions. He also asserts that the allegations are based on " pure speculation ." Further, Gore argued that preventing the use of Confide would "run afoul of these employees' First Amendment right to freedom of speech."

Even if the temporary restraining order is not granted on Friday, the case will continue. Pedroli said that he anticipated his side would "win under the laws as they are."

However, Sandy Davidson, a law and journalism professor at the University of Missouri, told Ars that there aren't "well-developed facts." It's still not clear, she noted, whether the governor and his staff are still communicating over Confide.

"So if the office is continuing to use Confide, you have violation after violation and no way to recoup the information," she said. "It evaporates. That's the purpose. It's hard to establish a record—there is no record to evaluate. Stopping it at the get-go may be a wise move."

But, she warned: "If they're not using it, then a temporary restraining order has nothing to operate on."

Both Confide and Signal were also reportedly used in the Trump White House before then-Press Secretary Sean Spicer banned them in February 2017, saying that the apps likely were not compatible with the Presidential Records Act.

CREW, an activist group, currently has a lawsuit pending in federal court over this exact issue. Jordan Libowitz, a CREW spokesman, told Ars he was unaware of any other similar lawsuits over ephemeral messaging besides his group's.

"The idea that you should be able to communicate with your staff on something that's inherently built to disappear from your comms is anathema to any sense of public trust in whether you are behaving the way that you would expect a public servant to behave," Alex Howard, the deputy director of the Sunlight Foundation, a Washington, DC-based transparency advocacy group, told Ars.

UPDATE 5:31pm ET: According to the Kansas City Star, several of Greitens' staff seem to have deleted their accounts.

"They are no longer listed on the app as being connected to the staff members’ phone numbers," the newspaper wrote. "It’s unclear when the accounts vanished. The governor’s office did not respond to requests for comment. Greitens still has an account, as do Austin Chambers, who runs the governor’s political nonprofit, and Jimmy Soni, the governor’s former communications adviser who remains on Greitens’ campaign payroll."