Court Rejects White House on Missing E-mails, National Security Archive, November 10, 2008.
A court ruled today that the National Security Archive may proceed with its effort to force the White House to recover millions of Bush Administration Executive Office of the President (EOP) e-mail records before the presidential transition.
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:
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.
Meredith Fuchs, the general counsel of the National Security Archive at George Washington University, writes that the Bush administration's hostility towards public access to and preservation of records combined with changes in technology that have transformed the way in which we all communicate are leading to a situation in which "primary sources on the most important decisions and activities in the government may be lost, destroyed, or closed to the public." [emphasis added]
- The White House: Off Limits to Historians? by Meredith Fuchs, Passport: The Newsletter of the Society for Historians of American Foreign Relations (5-1-08), posted at History News Network on Thursday, May 8, 2008.
[O]ver the last seven years there have been a series of moves by the current administration that may ensure that the records of the White House and the federal offices and agencies that work closely with the White House will not be available to historians.
The Veterans' Affairs Administration has recently instituted Microsoft’s Rights Management Services (RMS) (AKA DRM) to "manage" security of internal documents, email, handheld traffic. This sounds to me like a REALLY bad idea on so many levels, especially for a government that plays loose with emails, has a problem with classification and transparency. This seems to me a nuclear solution to a manageable social problem (duh! don't put home records of more than 26 millions veterans on a laptop PC that can be stolen!!), and one that will have far-reaching affect on open and transparent government.
"VA gets its rights: Department specifies how people can use — or not use — documents employees create." By Joab Jackson. Government Computer News, 3/3/08.
Perhaps not surprisingly, VA has become one of the earliest adopters — and thus far, the largest — of rights management software with its use of Microsoft’s Rights Management Services (RMS).
VA expected that by press time all employees would be able to set restrictions on what can be done with the documents they create.
When Word, PowerPoint or Excel files, or Outlook e-mail messages are sent to others, the authors can set permissions on what the recipients can do with those documents.
The creator of the document can decide whether it can be printed, forwarded or edited by other people. It’s the employee’s or the agency’s call.
Moreover, the documents are encrypted, so anyone without the appropriate permissions cannot see the contents.
"This ability provides our agency and users the assurance that only the author of the content or someone that has been given full-control permission to the content can remove the persistent protection from the e-mails and documents," De Sanno said.
"For instance, say I send you an e-mail and RMS that message," De Sanno said. "I can actually say you cannot print this [document], or that you cannot forward this. Or, it can evaporate in 30 days."
Among employees, contractors and other people, more than 250,000 individuals will shortly begin using this feature, the agency said.
This issue has been around for a while (see "White House eschews email." and "What's worse than 18 1/2 minutes of deleted audio?" previously posted on FGI). According to the SF Chronicle, the White House today is being ordered to provide information on millions of missing email from White House servers. Citizens for Responsibility and Ethics in Washington (CREW) has more background and a link to the judge's order.
A federal magistrate ordered the White House on Tuesday to reveal whether copies of possibly millions of missing e-mails are stored on computer backup tapes.
The order by U.S. Magistrate Judge John Facciola comes amid an effort by the White House to scuttle two lawsuits that could force the Executive Office of the President to recover any e-mail that has disappeared from computer servers where electronic documents are automatically archived.
In their lawsuits, the National Security Archive and Citizens for Responsibility and Ethics in Washington suggest the e-mails were improperly deleted from White House computer servers. Over 5 million White House e-mails are missing, CREW alleged. Recently, the group said it has been told by reliable sources that the actual figure of missing e-mail is over 10 million.
In asking that the complaints be dismissed, the Bush administration says the president’s record keeping practices under the Presidential Records Act are not reviewable by the courts. Also, the Federal Records Act does not allow the far-reaching action the two private groups are demanding, the administration contends…
What could be worse for a President than 18 1/2 minutes of missing tape (Listen to Nixon's Watergate Tapes here)? How about 10 MILLION deleted emails? Yup, that's right, White House email from March of 2003 to October 2005 (which would include the start of the Iraq War right up through the aftermath of Katrina) have "mysteriously" gone missing. The National Security Archive filed a motion back in October to find out what e-mails are missing from the White House e-mail system or backup tapes. This could be huge because the Presidential Records Act of 1978 mandates that White House communications be preserved.
Did White House Lie About Loss of Five Million Emails?, by Damon Poeter CMP Channel (03 October 2007).
When Congress asked about 5 million executive branch e-mails that went missing, a White House lawyer pointed the finger at an outside IT contractor. The only problem? No such IT contractor exists, according to sources close to the investigation of a possible violation of the Federal Records and Presidential Records acts.
The article includes a "Timeline of Events in White House E-mail Scandal."
Archive Sues to Recover 5 Million Missing White House E-mails, The National Security Archive, September 5, 2007.
The National Security Archive today sued the White House seeking the recovery and preservation of more than 5 million White House e-mail messages that were apparently deleted from White House computers between March 2003 and October 2005....
"The Bush White House broke the law and erased our history by deleting those e-mail messages," said National Security Archive director Tom Blanton. "The period of the missing email starts with the invasion of Iraq and runs through the aftermath of Hurricane Katrina."
White House Sued Again Over E - Mail, by The Associated Press, September 5, 2007
The White House abandoned an automatic archiving system for its e-mail in 2002 and did not replace it, says a lawsuit filed Wednesday against the Executive Office of the President.