Good Email Housekeeping vs Destroying Evidence

From time to time, I delete a selection of my saved emails and saved files. That good housekeeping makes it easier to find the best article references, article outlines, notes from family and financial documents. My retained files are chosen by their importance, not by date or sender.

I don’t wittingly break the law or correspond with those who do, so I do not quake if law enforcement reads through my email and document storage – an inconvenience I’ve been through before. While I was an employee, I was twice subjected to “discovery” where a half dozen cartons of my work files and emails were taken by prosecutors so they could rummage (unsuccessfully) for evidence to prove their fanciful allegations.

My employer enforced document retention rules by vintage, and by sender (e.g. if it’s from “Legal” you can keep it forever, for others not more than 90-days). Classified documents were kept on a separate system and in secured rooms that I had no access to. One rule was a prohibition on conducting personal email on company equipment. For my assignment, the distinction between personal and business correspondence was murky because many of my work contacts were friends, but I began using web-email for the clearly personal emails.

Emails are just useful communications –until an investigation is launched. Then if not handled properly, they become grounds for prosecution and destruction of reputations.

If my personal emails were on the company email system, they could be scooped up in any discovery involving my role as an employee. That may subject my email senders to “interviews” or publicly expose thoughts that they expected me to keep private. Of course, those outcomes would be my fault for misusing my employer’s email equipment.

If I deleted emails on an employer’s account before the prescribed retention date, I may have a problem from my employer, and it could appear that I was attempting sabotage, especially if “backups” were unavailable. This appears to be the context for the “disappearance” of 24,000 emails due to a “computer crash” of Lois Lerner’s account on the IRS email server. The suspicious loss was announced only after Ms. Lerner’s refusal to testify before the Senate hearing probing her partisan abuse of taxpayers. Painstakingly collecting emails from those she had “sent emails to” and those she had ”received emails from” could reconstitute most of the records, but the IRS pretends that’s too difficult.

Placing or deleting work emails on my personal email account could be viewed as an attempt to hide employer documents from “discovery” or as theft of employer information. This seems to be the context for Hillary Clinton’s erasure of emails from the personal and state Department mix. Her State Department assistant, Huma Abedin, also used Hillary Clinton’s private email server for work emails. Mrs. Clinton chose what to consider personal and erased the rest without allowing her employer the chance to choose which business records should be retained. It looks suspiciously like the burial of damaging evidence.

In 2007, two years of emails stored on an RNC system were lost. Some of the emails contained government employee ruminations on which Department of Justice attorneys to fire. The emails were erased purportedly due to a botched application of retention policy, but the government emails should not have been on the (private) RNC server in the first place. Again, erasure of employer data from a private email system buried evidence that could have been politically damaging.

Private sector emails on non-government servers are not allowed to disappear as quickly as are emails under government “control.” For example, the Department of Justice used a court order to obtain documents and work-related emails from James Rosen, a Fox News journalist. The attack on Rosen was done as payback for behaving as a journalist – he published material from a State Department leak.

The most recent high profile email scuffle arises from Congress’ subpoena for NOAA scientists’ research deliberations related to a climate warming report. Congress had issued a subpoena for those government records, but NOAA refused. NOAA has not yet “accidently” erased the emails.

Enough is enough. We cannot repeat playing “dead men tell no tales” by ditching emails. Some may think it convenient to play the accidental erasure gambit or assert the imperial justification of “they are personal because I say they are.” If government employees use email, they need to abide with fair rules under their Inspector General’s enforcement: mandatory backups, adherence to erasure policy, no personal email on government accounts, no government work product on personal email accounts, and production of subpoenaed documents without delay to the agency’s Inspector General.

In the private sector, email policy violations can earn a slap on the wrist or termination. If a private sector employee refused to cooperate in a law enforcement action against the employer, the penalty would likely be costly. Government agencies should also establish rules for handling encrypted documents in the context of subpoenas – especially from branches of government they dislike.

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