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Undoubtedly emails are records. This has been established in previous scandals from both parties that failed to retain them as required. In the corporate worl

Undoubtedly emails are records. This has been established in previous scandals from both parties that failed to retain them as required. In the corporate world, if there were a legal requirement for compliance, the auditor would verify that all work email is going over work servers, and then review the policies in place on those servers. You could technically let a special employee run their own server, but then that server would need to be audited, and the policies in place there reviewed. "Nah, you can trust Joe" wouldn't cut it. Otherwise the entire point of compliance laws just goes out the window.

dragonwriter 12y ago
> In the corporate world, if there were a legal requirement for compliance, the auditor would verify that all work email is going over work servers Legal compliance audits that I have been involved in tend to go beyond what is unquestionably prohibited by the law and also seek to identify and eliminate activities which might arguably violate the law (and thus create legal risk) including, but not limited to, those which violate organizations internal guidelines which are based on the applicable law but whose requirements may be (generally, should be) more strict than the law itself. There are three different, but related, categories into which this might fall, in decreasing order of breadth: 1) Behavior that would be of concern to a compliance audit focused on the law in question, 2) Behavior that would violate administration guidance related to achieving compliance with the law in question, 3) Behavior that actually violates the law in question. You are arguing, and I agree, that it is #1. There are reports that administration sources have indicated that it is #2 (I see no reason to doubt them, though I haven't seen the actual guidance, so I don't have an informed opinion.) Neither of those, however, is the same thing as it being #3.
- danielweber 12y ago
  As to #3, quoting from the article, as of 2009 (emphasis mine): > agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that federal records sent or received on such systems are preserved in the appropriate agency record-keeping system. How did they ensure this? As a few news stories, including the linked article, have reported, they would have been immune from FOIA requests. Here's another from http://www.politico.com/story/2015/03/hillary-clinton-used-private-email-account-for-state-department-business-115686.html http://www.politico.com/story/2015/03/hillary-clinton-used-p... > The fact that Clinton’s emails were not a part of official State Department records until recently means many of them would not have been located in response to Freedom of Information Act requests, subpoenas or other document searches conducted over the past six years
  - dragonwriter 12y ago
    > How did they ensure this? Yes, that's exactly the question this raises. > As a few news stories, including the linked article, have reported, they would have been immune from FOIA requests. They would not have been immune. They may have been overlooked in the course of handling such requests, although assuming anyone in the State Department offices responsible for conducting document searches in response to FOIA requests (or subpoenas, etc.) was aware of the practice, they quite probably wouldn't have been, there just would have been an extra step involved in handling the requests.

dragonwriter 12y ago

> In the corporate world, if there were a legal requirement for compliance, the auditor would verify that all work email is going over work servers Legal compliance audits that I have been involved in tend to go beyond what is unquestionably prohibited by the law and also seek to identify and eliminate activities which might arguably violate the law (and thus create legal risk) including, but not limited to, those which violate organizations internal guidelines which are based on the applicable law but whose requirements may be (generally, should be) more strict than the law itself. There are three different, but related, categories into which this might fall, in decreasing order of breadth: 1) Behavior that would be of concern to a compliance audit focused on the law in question, 2) Behavior that would violate administration guidance related to achieving compliance with the law in question, 3) Behavior that actually violates the law in question. You are arguing, and I agree, that it is #1. There are reports that administration sources have indicated that it is #2 (I see no reason to doubt them, though I haven't seen the actual guidance, so I don't have an informed opinion.) Neither of those, however, is the same thing as it being #3.

danielweber 12y ago
As to #3, quoting from the article, as of 2009 (emphasis mine): > agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that federal records sent or received on such systems are preserved in the appropriate agency record-keeping system. How did they ensure this? As a few news stories, including the linked article, have reported, they would have been immune from FOIA requests. Here's another from http://www.politico.com/story/2015/03/hillary-clinton-used-private-email-account-for-state-department-business-115686.html http://www.politico.com/story/2015/03/hillary-clinton-used-p... > The fact that Clinton’s emails were not a part of official State Department records until recently means many of them would not have been located in response to Freedom of Information Act requests, subpoenas or other document searches conducted over the past six years
- dragonwriter 12y ago
  > How did they ensure this? Yes, that's exactly the question this raises. > As a few news stories, including the linked article, have reported, they would have been immune from FOIA requests. They would not have been immune. They may have been overlooked in the course of handling such requests, although assuming anyone in the State Department offices responsible for conducting document searches in response to FOIA requests (or subpoenas, etc.) was aware of the practice, they quite probably wouldn't have been, there just would have been an extra step involved in handling the requests.