Hillary Clinton may have broken federal law when she exclusively used a personal email address during her time as Secretary of State and failed to save her messages to State Department servers, according to agency officials.
But Clinton is not the only high ranking Obama administration official who seems to have tossed aside email-retention rules—behavior that experts say has dire implications for both national security and your right to know what your government is doing.
Email and the law
Every email Clinton sent and received during her tenure as Secretary of State is legally considered a federal record that must be captured and managed by the federal government. The use of personal emails is permitted only during emergency situations, with the caveat that the records be transferred to official accounts as soon as possible. Clinton reportedly never used an official email account and has never made that transfer.
There are numerous reasons why these guidelines exist. First, transparency: to shed light on how government works for the public. Second, security: to avoid data breaches. Third, guidance: in order to give the department a historical record from which to learn and grow.
The regulations that forbade Clinton’s behavior existed for years before she entered office.
Law regarding electronic federal records states that each agency must retain a permanent copy of electronic records to be transferred to the National Archives and Records Administration (NARA), as made evident in this 2010 memo laying out the email-retention rules that applied during Clinton’s tenure at the State Department. (The current version of the memo is available here.) The U.S. State Department’s own record-retention schedule also instructs that all of the Secretary’s correspondence, along with a host of other material, be given federal record keepers.
Clinton’s aides took “no actions to have her personal emails preserved on department servers at the time,” according to the New York Times, despite these federal rules that required her to do just that.
“An aide told the New York Times that Hillary Clinton was following the ‘letter and spirit of the rules,’ but this notion is laughable,” Michael Morisy, the founder of transparency organization MuckRock, told the Daily Dot. “Federal regulations state that personal email addresses are to be used in emergency situations only for government work, and it’s hard to think of many places where this would be more important than at the head of the State Department, particularly after the leak of the United States embassy cables.”
A transparent problem
Since the news broke late Monday night, it’s become apparent that Clinton is likely not alone in her abandonment of an official federal email account.
Janet Napolitano, the former head of Homeland Security, was found to be using staffer’s emails to send correspondence instead of her own official address. This meant that Freedom of Information Act (FOIA) requests were denied because she “did not use email,” Homeland Security officials said last year, a falsehood that made transparency much more difficult than it legally ought to be.
When Vice investigative journalist Jason Leopold filed a FOIA request on the emails of former Secretary of Defense Chuck Hagel, the Defense Department told him that Hagel “does not maintain an official email account.”
Response from DOD to my #FOIA for Hagel's emails: Request closed "as we were advised SecDef does not maintain an official e-mail account."
— Jason Leopold (@JasonLeopold) November 30, 2014
As more and more of the business of government is conducted over email, the transparency surrounding the ubiquitous medium has become increasingly important. In recent days and months, numerous scandals have been kicked up over how government at various levels keeps track of its email records.
Democratic New York Gov. Andrew Cuomo has come under fire for fully implementing a policy that automatically deletes government emails after 90 days. Similarly, Republican Texas governor Greg Abbott’s policy of automatic email deletion after 30 days has received harsh criticism from open-government activists.
Emails are how government works. If citizens cannot read these emails—as is their legal right under laws like the Freedom of Information Act—transparency breaks down, critics say, giving way to a culture of secrecy that directly contradicts current decades-old legislation. Equally troubling, the practice potentially jeopardizes sensitive governmental communications.
“Putting this material in private hands heightens the risk of leaks, hacks, and blackmail,” said Morisy, “and it certainly appears like a calculated ploy to circumvent the Freedom of Information Act.”
“Her actions endangered national security, transparency, and the historical record,” he added. “They also violate current regulations that are clearly laid out by the National Archives.”
Political fallout
We don’t yet know why Clinton only used a personal address, but her political rivals are wasting no time criticizing the move.
“For her entire tenure as Obama’s Secretary of State, Hillary Clinton kept all of her official email off the books,” Republican deputy press secretary Raffi Williams told the Daily Dot. “This latest development raises serious questions in light of revelations that Clinton’s foundation received donations from corporations and foreign governments while they were lobbying her State Department. And it all begs the question: What was Hillary Clinton trying to hide?”
Jeb Bush, a likely 2016 presidential rival to Clinton, took to Twitter to say that the former first lady ought to release her emails for the public to see.
Transparency matters. Unclassified @HillaryClinton emails should be released. You can see mine, here. https://t.co/wZbtwd8O2j
— Jeb Bush (@JebBush) March 3, 2015
“Hillary Clinton should release her emails,” Kristy Campbell, Bush’s spokeswoman, told the Daily Dot. “Hopefully she hasn’t already destroyed them.”
Clinton has yet to comment on the story.
Photo via regan76 (CC BY 2.0)