As we have seen through the conflict and problems of preserving White House e-mail, the law has not kept up with preservation of electronic messages.
A bill (H.R.5811, “The Electronic Message Preservation Act”) moving through Congress would address the problems by adding a new Section 2911 to Title 44, Chapter 29. It would require the electronic capture, management, and preservation of electronic records, require that they be readily accessible for retrieval through electronic searches, and would establish mandatory minimum functional requirements for electronic records management systems to ensure compliance with the requirements.
The Bush administration is threatening a veto:
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White House Threatens To Veto House E-Mail Storage Bill, By Dan Friedman, CongressDaily, Jul 9, 2008 (subscription required, but freely available here).
The White House and officials at the National Archives and Records Administration (NARA) argue that the law gives NARA new responsibility and expands the agency’s job from advice to oversight, but the sponsors of the bill say that it only affirms the National Archives’ job of advising the White House on record-keeping.
The CongressDaily articles notes that:
A less-discussed but farther-reaching part of the bill updates the Federal Records Act to require federal agencies, also under standards set by the National Archives, to save all e-mail records electronically and create systems to allow electronic searches.
According to GAO and a committee report, most agencies now use “print and file” records systems for keeping e-mail, many of them spotty.
(See National Archives and Selected Agencies Need to Strengthen E-Mail Management, United States Government Accountability Office, GAO-08-742 June 13, 2008.)
A comment in the Committee Report (House Report 110-709, “Electronic Message Preservation Act” 110th Congress 2d Session, June 11, 2008) says:
To make federal agencies comply, I believe this legislation should include enforceable repercussion language. Ms. Patricia McDermott of OpenTheGovernment.org suggests this is the only way to make federal agencies comply with the Federal Records Act. Ms. McDermott states that she does not “think anyone has ever been prosecuted for destroying, much less failing to preserve federal records.” Just ask former Clinton EPA Director Carol Browner. She supposedly oversaw the destruction of her computer files in violation of a judge’s order requiring the agency to preserve its records.
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