Reporting by The New York Times notwithstanding, it appears to this non-lawyer that Hillary Clinton probably didn’t break any laws by using a personal email account to conduct state business. But legal or not, what should probably bother us all is that we can’t help but assume that there’s no way that clintonemail.com was secure. Because that’s a key concern here–we just can’t believe that state secrets could be safe in such an account.
The Times broke the story by saying that Clinton had not only made extensive use of a personal email account while Secretary of State, but that “Federal regulations, since 2009, have required that all emails be preserved as part of an agency’s record keeping system.”
It is neither clear that the requirements regarding email accounts were in effect in 2009 (or indeed, during the entirety of Clinton’s tenure in the office), nor that she failed to preserve the email messages (when the State Department requested the email last year, Clinton provided 50,000 messages).
The relevant law here, it would appear, begins with a memorandum to update an existing (1950) law guiding records management. The memorandum was issued by President Obama in 2011.
This directive didn’t change the rules, it simply called for the rules to be re-examined and updated. The National Archives and Records Administration (NARA) subsequently published their findings and proposed changes in August 2013. At that point, Clinton had been out of office for more than half a year. The NARA findings weren’t actually signed into law until 2014.
Nothing in the new rules (or the old ones) prevents a cabinet member from using a personal email account to conduct business, provided the records are kept and the emails are turned over to that cabinet member’s agency for preservation. And it’s been done before: Colin Powell used personal email for state business.
Legal or not, commentary on the Internet has been quick to say that using personal email is no way to treat sensitive national business. As a practical matter, that seems irrefutably true, though whether it’s equally true that the State Department’s email system is secure is, I’d say, an open question. Certainly their system for diplomatic cables had its rough edges.
But why is it so obvious or inevitable that a personal mail account is insecure? Email is, frankly, a pretty straightforward system. And yes, certificate management is a tricky subject that complicates encryption, but I see no reason why major providers of personal accounts couldn’t issue basic certifications as part of creating an account. This wouldn’t mean that messages coming from that account weren’t fraudulent (because the real identity of the account holder would presumably remain unverified), but it would mean that if I sent you a message encrypted with those keys, nobody else would be able to read it, give or take the NSA.
Hillary’s team didn’t lack for means and I suspect she has some pretty sharp people handling her IT. But somehow we’ve been concerned about computer security for a quarter century and we have no faith at all that she couldn’t set up her own secure email. Now there’s something that ought to be against the law.