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Anyone who follows American politics will have heard of Hillary Clinton's email server. Rather than using an official State Department address, she chose to use a private server for her official email. Federal law requires all official email to be archived on government servers. Armchair lawyers have pointed out that it doesn't require the use of government servers to send and receive the email, but the archival requirement is clear. This requirement was clearly violated in this case: in response to a subpoena, Hillary Clinton's private staff extracted emails from her private server and turned them over to the government. The contents of the server itself were never made available to the government, and now she has had the server erased:
Hillary Clinton wiped “clean” the private server housing emails from her tenure as secretary of state, the chairman of the House committee investigating the 2012 terrorist attacks in Benghazi said Friday.
“While it is not clear precisely when Secretary Clinton decided to permanently delete all emails from her server, it appears she made the decision after October 28, 2014, when the Department of State for the first time asked the Secretary to return her public record to the Department,” Rep. Trey Gowdy (R-S.C.), chairman of the Select Committee on Benghazi, said in a statement.
As Popehat tweeted:
@Popehat
I ask you, who among us hasn't wiped a server clean after its contents were requested by subpoena?
I naively wonder why she isn't in jail, but that's just me. Comments and views from those interested in American politics?
(Score: -1, Troll) by Anonymous Coward on Monday March 30 2015, @10:26AM
Do you record every face-to-face conversation? Do you record every phone conversation? Do you record every text message?
Why draw the line, between ephemeral communication and permanent communication, at email?
Why not just mandate paper memos for important business. The durability of paper is well proven.
(Score: 0) by Anonymous Coward on Monday March 30 2015, @01:52PM
The law generally.
Face-to-Face: Might be illegal without consent. Probably illegal without notification. Not of much use without audio.
Audio/Phone: Probably illegal without notification or consent.
Email: Legal, easy, and already automated in every modern client.
(Score: 2) by Runaway1956 on Monday March 30 2015, @03:03PM
It appears that you are not up to date with governmental intentions. Government desires to do away with paper, completely, and to rely on electronic communications. It isn't going to happen so long as us old bastards are still around, but government is slowly moving in that direction. Electronic communications must be regarded as "permanent", or at least as permanent as any "paper trail" before that goal is reached.
(Score: 2) by Zinho on Monday March 30 2015, @03:59PM
Cut the weasel words and do [wikipedia.org] your [vegress.com] research, [rcfp.org] please.
Only 11 of the 50 states require that all parties be aware of the recording; Federal law only requires that one of the participants be aware.
Apologies in advance, I'm about to rant at you because this is a sore point for me. Feel free to stop reading now if you don't care what my opinion is; I won't care one way or the other.
The conflict between your your idea that face-to-face recording is "probably illegal" and the fact that by Federal Law and law in 39 of the States it is legal is one of philosophy. Those who would outlaw it want personal privacy to be the paramount consideration in the law. That sounds good; it fits with a simple explanation of the U.S. Constitution's 4th amendment, even. Here's the problem: all-party recording laws prevent those who already had a legal right to be part of the conversation from augmenting their memory of the event with mechanical means. There is no benefit to society of this, and significant drawbacks.
Let's start with drawing a parallel to John Gabriel's G.I.F.T., [penny-arcade.com] which I hope most of the readers here are at least aware of, if not in agreement to. In states with two-party recording requirements all parties to a conversation can be reasonable assured that unless they are told that they are being recorded that they can do or say pretty much whatever they want without legal repercussion. If it came to court, any complaint about misconduct boils down to "he said/she said" and in the absence of hard evidence the plaintiff's case is dismissed and, in some states, may be open to a counter-suit for defamation or libel. In essence, all-party recording laws bring the deniability and lack of accountability from Internet anonymity into the real world, with all of the expected consequences.
The federal wiretapping law, in contrast, grants each participant in the conversation the right to make a permanent, objective, shareable record of their own personal experience. It allows everyone the right to elevate their testimony of the events of their own life from hearsay to admissible evidence if they so desire. This right is crucial for victims of abuse and those who would report on abuse of government authority. In essence, it is the right to be believed when giving a truthful account of events. The Federal law, as written, places the importance of this right above that of individual privacy of other parties in the conversation.
The 4th amendment does not protect anyone from being recorded by the people they are speaking with. Its purpose, instead, is to protect from 3rd parties (especially the government) listening in. It should be assumed that anyone participating in a conversation can later give testimony about their experience in that conversation. Recording devices today give that testimony the same weight that verbal testimony under oath used to have (oaths don't hold as much water anymore). There is no law protecting private individuals from the embarrassment of misbehavior or incompetence in the presence of others, nor should there be. This is not a case of "if you're not doing anything wrong you have nothing to hide", this is instead "if you're not alone when you do it, it's not really private."
Unfortunately, these all-party laws are too often used to cover up illegal behavior or official misconduct. The Case of Anthony Graber [baltimoresun.com] brought this to light in 2010, when his audio recording of his police stop resulted in his prosecution for violation of the Maryland wiretapping law. It's not the only case of this occurring, either, not by a long shot. [lmgtfy.com] The good news is that, at least for public officials, the Maryland courts have ruled [baltimoresun.com] that we can record them doing their duty in public in that state. I hope other states come to the same conclusion.
(Score: 1, Informative) by Anonymous Coward on Monday March 30 2015, @02:58PM
"Do you record every phone conversation? Do you record every text message?"
The government sure seems to. Or at least they try. It's OK for them to spy on us but for us to spy on them ...
(Score: 3, Insightful) by hemocyanin on Monday March 30 2015, @03:16PM
I'm a private person, HRC is a _public_ official. These words mean something. A public official has a duty to the public and must be accountable to that public. For accountability to mean something, that public person account for their actions and to account, they must demonstrate what they've done.
A private individual is not accountable to a public person. Look up the word "private" if you can't comprehend this.
So, yes -- everything done by a public should be recorded. Absolutely no private communications of any kind should be recorded of private people, short of a valid warrant.
(Score: 2) by tathra on Monday March 30 2015, @06:43PM
not everything, just everything done while acting as the public's delegate. when not working in official capacity, even public officials become private persons. one should not lose their right to privacy or private life just because they're a public official, but they absolutely should not have privacy while acting on behalf of the public (basically, working/on the job = public, not working/off the job = private).
(Score: 0) by Anonymous Coward on Monday March 30 2015, @07:48PM
+Y/+X =positive
-Y/-X =positive
Just sayin!
(Score: 2) by hemocyanin on Monday March 30 2015, @08:14PM
I don't know if I agree. So much can happen of great importance while not in their office or at their desk. We have an idiom for that: smoke filled back room deal
I think it would be better if there was 100% transparency with respect to the people who make decisions that kill millions.
(Score: 2) by tathra on Tuesday March 31 2015, @01:09AM
i already covered that - if they're doing that, they're acting as the public's delegate, and thus working in official capacity, and it needs to be documented. there will always be people exploiting loopholes, seeing how far the rules can be pushed, and even breaking the rules, so maybe the only way to ensure compliance would be to document/record everything and then have only the official stuff (working as the public's delegate, no matter what they're doing or how they're doing it) made public and delete everything else.
i stand by my statement - being a public official should not mean losing your non-work-related private life, but it should mean no privacy while working.
(Score: 2) by hemocyanin on Tuesday March 31 2015, @03:50AM
I could live with record it all and delete, but when the lives of millions are at stake, and you volunteered for the job as a public representative of the American populace, it's only fair that they accept the downside to that job, which is that they are a public person and the public has a right to know what they are doing in its name. If you give them private places to hide though, that back room will just move to the closet, or the toilet. So record everything now and delete later.