Jefferson City - A Cole County judge on Friday denied a temporary restraining order for the use of the Confide app by Governor Eric Greitens office.
The judged denied the order because he said their is no immediate and irreparable harm, but said further litigation for a preliminary injunction will take place in March.
The lawsuit was filed in December by Ben Sansone. The lawsuit asks for a temporary injunction to stop the governor and his staff from using Confide. The lawsuit says the app violates Missouri's open records law by making it impossible to know if the governor and his staff use their personal phones for state business.
Sansone said he filed the lawsuit because he believes in a transparent government and when the government and his office use this app is defies the state record retention law and state sunshine laws.
Confide is an app that deletes text messages and prevents them from being saved. The app also makes all text message screen shot proof.
Confide President and Co-Founder Jon Brod said all messages in the app undergo the same process.
"All Confide messages are end-to-end encrypted, to ensure that only the specified recipient can read them," Brod said. "They are also screenshot-protected and ephemeral, to ensure that no copies are left behind. After a message is read once, it is immediately deleted from our servers and wiped clean from the device."
"It cannot be saved, archived, retrieved forwarded, cut-and-pasted, etc. It is gone."
The plaintiff's attorney Mark Pedroli argued it's impossible to determine that zero percent of the communication between the governor and his staffers had nothing to do with any public business, which would violate state record retention laws.
The governor's lawyer Gabriel Gore said Pedroli has no factual evidence on the use of the Confide app and is only relying on media reports and allegation made by the media.
On Tuesday, Greitens' attorneys said ordering the governor and his staff to stop using Confide would violate free speech rights.
Pedroli said the purpose of the First Amendment is to protect the people for the encroachment of the government not the government from the encroachment of the people.
"Because the app deletes a text message immediately after it is read, leaving no paper trail, is the problem." said MU communication law professor Sandra Davidson. "With no paper trail it's unclear to tell if the governor and his office was using the app for public business or personal matter."
The White House under the Trump administration has banned the use of Confide.