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:
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?
Why draw the line, between ephemeral communication and permanent communication, at email?
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.
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.
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.