Posted: 01:47 EST
Updated: 11:19 EST
Updated 15:14 EST
Shortly after the NYT broke the story about the former secretary of state’s exclusive used of a personal email account to conduct government business, we sent an inquiry to the State Department’s Office of Inspector General. We don’t know if they could comment about it but we wanted to ask anyway. We’ve looked at the regs but the FAM is silent on the use of private email, or at least we thought it was. It almost seem as if the rule makers presumed that all employees will be using official email, thus, the rules only spell out the requirement for the preservation of records.
If Secretary Clinton was using a private email account and if her close advisers were also using private email accounts, we wanted to know how is this reconciled with the ability of individuals to FOIA government documents. We were also interested how this would keep other senior or even regular employees from using Yahoo or Gmail to conduct official business.
State/OIG’s response was, “we are not in a position to comment at this time.”
Actually, we asked the wrong questions.
In 2012, we blogged about the OIG inspection report of the U.S. Embassy in Kenya. (See State/OIG Releases Ambassador Scott Gration’s Embassy Report Card – And Look, No Redactions!). We mentioned in passing the ambassador’s use of commercial email for official government business. In light of these news reports that Secretary Clinton exclusively used nongovernment email during her four year tenure as secretary of state, the old 2012 report is getting some legs again.
State Dept. IG hammered ambassador for using private email account while Clinton was doing same thing http://t.co/ksCSzUBGr6
— Jake Tapper (@jaketapper) March 5, 2015
Below is an excerpt from that 2012 report specifically addressing the ambassador’s use of commercial email for daily communication of official government business. The ambassador was also slammed for using “a government-owned laptop that is not physically or electronically connected to the Department’s OpenNet network.”
Mission Leadership Challenge
Very soon after the Ambassador’s arrival in May 2011, he broadcast his lack of confidence in the information management staff. Because the information management office could not change the Department’s policy for handling Sensitive But Unclassified material, he assumed charge of the mission’s information management operations. He ordered a commercial Internet connection installed in his embassy office bathroom so he could work there on a laptop not connected to the Department email system. He drafted and distributed a mission policy authorizing himself and other mission personnel to use commercial email for daily communication of official government business. During the inspection, the Ambassador continued to use commercial email for official government business. The Department email system provides automatic security, record-keeping, and backup functions as required. The Ambassador’s requirements for use of commercial email in the office and his flouting of direct instructions to adhere to Department policy have placed the information management staff in a conundrum: balancing the desire to be responsive to their mission leader and the need to adhere to Department regulations and government information security standards. The Ambassador compounded the problem on several occasions by publicly berating members of the staff, attacking them personally, loudly questioning their competence, and threatening career-ending disciplinary actions. These actions have sapped the resources and morale of a busy and understaffed information management staff as it supports the largest embassy in sub-Saharan Africa.
Authorized Automated Information Systems
The Ambassador uses a government-owned laptop that is not physically or electronically connected to the Department’s OpenNet network. Authorized Department OpenNet email systems are available on the Ambassador’s office desktop. According to 12 FAM 544.3 and 11 State 73417 (from the Assistant Secretary for Diplomatic Security to the Ambassador), it is the Department’s general policy that normal day-to-day operations be conducted on an authorized information system, which has the proper level of security controls. The use of unauthorized information systems increases the risk for data loss, phishing, and spoofing of email accounts, as well as inadequate protections for personally identifiable information. The use of unauthorized information systems can also result in the loss of official public records as these systems do not have approved record preservation or backup functions. Conducting official business on non-Department automated information systems must be limited to only maintaining communications during emergencies.
Recommendation 57: Embassy Nairobi should cease using commercial email to process Department information and use authorized Department automated information systems for conducting official business. (Action: Embassy Nairobi)
Source: Inspection of Embassy Nairobi, Kenya | Report Number ISP-I-12-38A, August 2012 | pdf
We should point out that the 2012 report was issued prior to the tenure of IG Steve Linick and Secretary Clinton tenure at the State Department ended in February 2013. But with 2016 just around the corner, this email debacle will not die a quiet death.
The unclassified cable STATE 065111 on securing email accounts sent to all overseas posts on June 28, 2011 only says “avoid conducting official Department business from your personal email accounts.”
See the magic word there? It did not say you can’t, only that you shouldn’t.
So for the second day in a row, the subject of the Clinton emails was featured in the Daily Press Briefing. The State Department’s deputy spox, Marie Harf was impressive when she said that “There was no prohibition” on the use of personal email. She emphasized that “There was not then and there is not now a prohibition on using a personal email for official business, and at the time she was in office, there was no time requirement for when those needed to be preserved as records.”
Entertainment value? High.
In any case, the question that we probably should have asked the OIG is this — if an ambassador was “hammered” for his use of nongovernment, private email, can we presume that ordinary bureaucrats would get a similar treatment? And if this is so — don’t we then have a set of rules that applied to everyone but the head of the agency? We originally cited 5 FAM 440 (pdf) as the rules governing Electronic Records, Facsimile Records, and Electronic Mail Records in the State Department. But wait — the 2012 OIG report on Kenya cited 12 FAM 544.3 Electronic Transmission Via the Internet (pdf), a section of the FAM that has been in the rules books since 2005. It says in part:
It is the Department’s general policy that normal day-to-day operations be conducted on an authorized AIS [automated information system], which has the proper level of security control to provide nonrepudiation, authentication and encryption, to ensure confidentiality, integrity, and availability of the resident information. The Department’s authorized telework solution(s) are designed in a manner that meet these requirements and are not considered end points outside of the Department’s management control.
c. Employees should be aware that transmissions from the Department’s OpenNet to and from non-U.S. Government Internet addresses, and other .gov or .mil addresses, unless specifically directed through an approved secure means, traverse the Internet unencrypted. Therefore, employees must be cognizant of the sensitivity of the information and mandated security controls, and evaluate the possible security risks and then decide whether a more secure means of transmission is warranted (i.e., secure fax, mail or network, etc.)
d. In the absence of a Department-provided secure method, employees with a valid business need may transmit SBU information over the Internet unencrypted after carefully considering that:
(1) SBU information within the category in 12 FAM 541b(7)(a) and (b) must never be sent unencrypted via the Internet;
(2) Unencrypted information transmitted via the Internet is susceptible to access by unauthorized personnel;
(3) Email transmissions via the Internet generally consist of multipoint communications that are routed to their destination through the path of least resistance, which may include multiple foreign and U.S. controlled Internet service providers (ISP);
(4) Once resident on an ISP server, the SBU information remains until it is overwritten;
(5) Unencrypted email transmissions are subject to a risk of compromise of information confidentiality or integrity;
(6) SBU information resident on personally owned computers connected to the Internet is generally more susceptible to cyber attacks and/or compromise than information on government owned computers connected to the Internet;
(7) The Internet is globally accessed (i.e., there are no physical or traditional territorial boundaries). Transmissions through foreign ISPs or servers can magnify these risks; and
(8) Current technology can target specific email addresses or suffixes and content of unencrypted messages.
General policies, of course, can have exceptions and if that’s what happened here, wouldn’t it be nice to know who were granted exceptions to use private email accounts besides the secretary of state and why? And did the Legal Advisor or somebody else signed off on those exceptions? Was the clintonemail.com server an authorized AIS [automated information system] of the State Department, and if so, who authorized it?
We cannot predict where this email controversy is going to end, but some Internet sleuth is digging up Dubai, Denmark, Luxembourg in what seems to be an already convoluted matter. If you read the link below there is an interesting question whether the Clinton e-mail server was hosted for some period of time by an outside hosting firm. If the hosting firm was based
overseas at an external location in Texas or elsewhere, wouldn’t this be an added headache for cybersecurity and something the OIG’s new Office of Evaluations and Special Projects (ESP) might be interested in?
— Lachlan Markay (@lachlan) March 5, 2015
While the Inspector General of the State Department might not be in a position to comment about this issue publicly at this time, or might not want to wade into the rabbit hole with this political firecracker, it may not have much of a choice. Even our apolitical neighbors were dismayed by this. The perception that the rules may have been applied selectively, based on rank undermines the Service. That in itself is an excellent excuse to review the entire practice and determine to what extent exceptions were made. The Republican National Committee has reportedly already asked the Office of Inspector General to look into whether Clinton’s practices led her or the department to violate the Federal Records Act.
It’s only a matter of time before there is a formal congressional request. Heads up State/OIG, this firecracker is heading your way.
* * *
NARA Bulletin 2013-03 | September 9, 2013 – Guidance for agency employees on the management of Federal records, including email accounts, and the protection of Federal records from unauthorized removal
OMB | Managing Government Records Directive requires that Federal agencies manage all their email electronically by December 31, 2016.