"The head of each Federal agency shall make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities. (44 U.S. Code § 3101)"

The only relevant question is, "are emails 'records'?", and according to the State Department, the answer is yes:

"All employees must be aware that some of the variety of the messages being exchanged on E-mail are important to the Department and must be preserved; such messages are considered Federal records under the law. (5 FAM [Foreign Affairs Manual] "

And I might add that the accusation here is not that she had a personal account in addition to her official one, it's that she didn't have an official one at all.

I don't know, I see other relevant questions. For instance, nothing in the quoted law says anything about how they shall "make and preserve" the records, only what purposes those records must be adequate to serve. So, using private email alone doesn't seem to be a violation, it seems to be something that might be the starting point for an inquiry as to whether she made and preserved "ontaining adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities", but it doesn't alone provide an answer to that question whether or not you consider emails as records.

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.

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.

> 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-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

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.

"Former secretary of state Hillary Rodham Clinton appears to have operated in violation of what the White House said Tuesday was “very specific guidance” that members of the Obama administration use government e-mail accounts to carry out official business."

Saying "email is not a system of record" is lot like saying "RAID is not a backup". Just because you don't use reliable a long term storage medium doesn't mean you don't have and use those records.

It doesn't even fly contrary to e-discovery, it's just a difference in multiple contextual definitions of "record."

The fact is this, Palin matters because she's not a Democrat. Democrats have Stockholm Syndrome. When a Republican is corrupt, much of the time, they resign. When a Democrat is corrupt, they get reelected. Re: Marion Berry, Maxine Waters, Charlie Rangel, Chris Dodd. Tom Delay was another bad one, however he was actually charged with a crime and he resigned.

Palin is nothing more than a proxy to rationalize bad behavior.

Democrats most definitely don't have a monopoly on corruption; however how Democrat voters deal with the corruption is markedly telling.

And was then vindicated in the courts.

Texas has a weird arrangement where the very Blue Austin area prosecutor has a remit for political corruption in the entire state. The same officer recently indicted (now former) Governor Perry for threatening a veto, a rather unique take on a constitutionally enshrined executive action.

The advocates for full disclosure imo are biting their nose to spite their face. Normal people running everything from little leagues to major corporations use email for strategy development, information delivery, deliberative functions and other normal business processes.

Known figures in government cannot do that, because the second they do, that information is available to the universe. The consequence is that officials don't use email, and either go through couriers, use some grey area communications mechanism, or do something else that is lost to the public record. It's ridiculous that President Obama or any smart governor cannot have a computer on this desk because of this stuff.

I think the current law was designed for paper memos and letters and works counter to its intended goal. Leaders cannot lead if everything they write needs to be staged for this evening's news. There should be a long aging process for this type of material.

Clinton did not claim executive privilege. She set up a secret email account in order to avoid disclosure laws. This criminal and corrupt action should disqualify her for presidential office.

18 U.S. Code § 2071 - Concealment, removal, or mutilation generally

(a) Whoever willfully and unlawfully conceals, removes, mutilates, obliterates, or destroys, or attempts to do so, or, with intent to do so takes and carries away any record, proceeding, map, book, paper, document, or other thing, filed or deposited with any clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined under this title or imprisoned not more than three years, or both.

(b) Whoever, having the custody of any such record, proceeding, map, book, document, paper, or other thing, willfully and unlawfully conceals, removes, mutilates, obliterates, falsifies, or destroys the same, shall be fined under this title or imprisoned not more than three years, or both; and shall forfeit his office and be disqualified from holding any office under the United States. As used in this subsection, the term “office” does not include the office held by any person as a retired officer of the Armed Forces of the United States.

I also work for an organization where FOIA laws mean anything I produce is available to anyone who asks (and knows what to ask for). The purpose of laws like this is to prevent your elected and/or unelected officials from doing things that are detrimental to society. Those "couriers... grey area communications mechanism, or... something else that is lost to the public record"? Yeah, you're fucked if someone can figure out how to request those, because they're subject to the same laws, and it sure looks like you're trying to hide something.

Leaders cannot lead if they're working against the public interest. If they're not working against the public interest, then they can justify why they're doing what they do. Period.

Government policymakers deal with issues that involve organized labor, various special interests, and business interests.

By making things operate in a such a way that people cannot function in a modern manner, you're pushing much of the deliberative process away from written mediums to telephone and in-person meetings. By doing this, you're empowering people who have access to power (lobbyists, etc), in the name of transparency that is almost meaningless.

Second, "cannot function in a modern manner"? If you're creating a public record, it's subject to FOIA. End of discussion. The point of FOIA is that you, as a creator of public records, cannot hide your work product from the people you serve. If you have nothing to hide, you have nothing to fear, or so I've been told.

http://www.ibtimes.com/amid-federal-corruption-probe-andrew-...

You can have and create a document-deletion policy, no problem. But -- and I've had this drilled into me at multiple employers, because it's really important -- once you are told by legal that an investigation is under way, you don't delete them, no matter what, until legal tells you otherwise. You take active steps to preserve them if need be.

Cuomo's optics suck, but unless you think he's criminally insane, he wouldn't delete emails while investigators wanted emails preserved. There's some part of the story we haven't heard.

Did you know that people flush drugs down the toilet when cops knock on the door, in clear violation of the law?

I've also only seen this story in IBT, not elsewhere, and they carefully don't say that these records are part of the investigation, just that an investigation is happening and that emails are being deleted -- leaving it to the reader to connect the dots that don't necessarily exist.

None of those even begin to reach the level of Clinton's conduct. She conducted ALL communications through the private email. None of the above used private emails exclusive. Most of them don't even sound like they used the private emails the majority of the time.

This is just an attempt at associating a larger issue with a bunch of smaller ones so people will think of it as a minor one.

http://www.nytimes.com/2015/03/04/us/politics/using-private-...

I can't think of a lot of reasons of do this other than to attempt to hide things

I don't think that a public figure, even in higher ranks, should be exposed to that kind of scrutiny. Privacy is a privilege which everyone should enjoy. Even those who are trying to literally kill it.

You can start by using your work email for all work-related purposes.

If someone on Wall Street refused to use work email -- which can be monitored by their employer -- for communicating with clients, it would stink to high heaven.

Your phrasing is very apropos, since if the law is applied to her (which I believe is the question you are asking), it will almost certainly be applied to her "the way it has been applied to Petraeus", as opposed to the way it's applied to someone lower down the totem pole:

"[Former State Dept. official Stephen] Kim did not hand over a copy of the [classified North Korea] report — he just discussed it, and nothing else — and the report was subsequently described in court documents as a “nothing burger” in terms of its sensitivity. Kim is currently in prison on a 13-month sentence."[0]

For context, Petraeus "gave highly-classified journals to his onetime lover and that he lied to the FBI about it."[0]

[0]https://firstlook.org/theintercept/2015/03/03/petraeus-plea-...

2. I don't know, do you? My guess is that, yes, she did.

3. It depends on whether shared classified information with anybody who did not have clearance. My guess is that, no, she didn't, or this would already be a much bigger story.

Using a personal email address is not the same as sharing classified information.

But this issue isn't (yet) about handling of classified material; it's about government oversight.

I don't think it is. I do it every day at work.

Use your personal email to communicate with your babysitter, and your official work email only for work stuff.

One problem with that. I have an official work (.edu) email that is practically useless. Constantly full of spam, both from outside, and from clueless employees. Domain gets blocked from sending to popular domains occasionally for mass spamming. Can't accept attachments (or rarely accepts them). High and unpredictable inbox latency. Goofy, insecure, obsolete pa55woRD! rules. etc. The .gov email addresses I have had from past jobs weren't always much better.

So I have an official work email, an unofficial work gmail, and a private email account for personal business.

But the larger point is that Clinton should have had some procedure to regularly archive her work-related comms (no matter what the method was).

You stop it by holding people accountable for their actions. I manage to keep my work e-mail separate from my private e-mail, it's not hard.

[...]

"Operating her own server would have afforded Clinton additional legal opportunities to block government or private subpoenas in criminal, administrative or civil cases because her lawyers could object in court before being forced to turn over any emails. And since the Secret Service was guarding Clinton's home, an email server there would have been well protected from theft or a physical hacking."

Source: http://bigstory.ap.org/article/b78ba433af3a45209668f745158d9...

You mean the WHOIS records?

If so, I'm not sure it's so easy to simply dismiss "traced back to an Internet service registered to her family's home in Chappaqua, New York" as referring to the WHOIS record. It sounds like they're looking at the IP address, in which case I guess it's technically possible that the actual mailserver isn't physically located at her home, but for the purposes of the article it'd be reasonable to say that she ran [part of] the service from her home.

I agree that it'd be preferable if they could explain what evidence they're actually basing this on, but it doesn't read to me like they're talking about the WHOIS.

The key words are "registered to", which means nobody was able to trace the actual traffic to the home. Not that that would necessarily be easy, but in absence of that I think it's far more likely that she's not administering running mail servers from her home.

  Registrant Name: PERFECT PRIVACY, LLC
  Registrant Organization:
  Registrant Street: 12808 Gran Bay Parkway West
  Registrant City: Jacksonville
  Registrant State/Province: FL
  Registrant Postal Code: 32258
  Registrant Country: US
  Registrant Phone: +1.5707088780
  Registrant Phone Ext:
  Registrant Fax:
  Registrant Fax Ext:
  Registrant Email: [email protected]

  10 clintonemail.com.inbound10.mxlogic.net.
  10 clintonemail.com.inbound10.mxlogicmx.net.

Note that MXLogic is a managed email service provided by McAfee.

Given that and what you say, the most likely scenario IMO is that she was getting too much spam and asked whoever was taking care of her IT to do something. They decided to front-end her email with MXLogic and it's still going to Google (but of course, we don't know for sure).

If so, the whole premise of the article (Some people use Google, but Clinton built her own server) is false.

Meanwhile, the AP thinks that Clinton's MX choices have to do with her feelings about China.

http://bigstory.ap.org/article/b78ba433af3a45209668f745158d9...

In November 2012, without explanation, Clinton's private email account was reconfigured to use Google's servers as a backup in case her own personal email server failed, according to Internet records. That is significant because Clinton publicly supported Google's accusations in June 2011 that China's government had tried to break into the Google mail accounts of senior U.S. government officials. It was one of the first instances of a major American corporation openly accusing a foreign government of hacking.

You know what other email server is protected by the Secret Service? whitehouse.gov

Having stuff go through two email servers makes security strictly worse: any security flaws on either server exposes mail.

http://bigstory.ap.org/article/b78ba433af3a45209668f745158d9...

This is another case where I wish they would just get some IT expert to look at the evidence and explain it technically (not dumbed down, not for a layperson). Maybe only technical people would understand, but at least the media record would be accurate.

http://en.wikipedia.org/wiki/Lisa_P._Jackson#EPA_Administrat...

>It's a difficult balance.

No it's not, and you know it. If you're discussing job-related matters, use your work email, not the system you had set up so that you could evade your workplace data-retention policies. Who knows; maybe Clinton and Blumenthal send all their "re: re: re: funny" cat pictures to each other through this, but I doubt it.

Any maybe your parents never taught you, but just because other people break the rules doesn't give you an excuse to break the rules. If only our politicians had any sense of right and wrong...

However, the answer is not to bring your personal equipment onto the corporate network. Which sucks because if you need to get something taken care of between 8 and 5, how are you going to manage that? Your options are limited if you don't have a guest network at work.

Your personal, private, and confidential dealings while using employer provided equipment, networks, and time are anything but those things.