Rabbit Hole News: State Dept’s Private Email Usage Policy, Plus Attn: State/OIG – Firecracker Coming Your Way

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.


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?



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.

* * *

Related post:
So wait — Hillary Clinton never got a state.gov email? What does the FAM say?

Related items:

State Department June 28, 2011 Unclassified Cable 065111 on Securing Email Accounts via (foxnews)

NARA Bulletin 2014-06 | September 15, 2014 – Guidance on Managing Email

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

NARA Bulletin 2011-03 | December 22, 2010 – Guidance Concerning the use of E-mail Archiving Applications to Store E-mail

OMB | Managing Government Records Directive requires that Federal agencies manage all their email electronically by December 31, 2016.




Mystery Playboy: Consul General Behaving Badly – Just Stop Already!

The Consul General in a constituent post in Country X carried on with the consulate’s instructor then made her life miserable after they broke up — all without informing Mission management of this relationship with a subordinate.  As the CG apparently thinks his only job is to be a “playboy,” he delegated the running of the consulate to a “tyrannical” subordinate officer.

Quick quiz here:

Consensual relationship policy applies even to playboys
True or False

Several people curtailed
True or False

Embassy Front Office, nice folks but dysfunctional
True or False

The OIG has ignored all complaints about these problems
True or False

When one complains to the OIG’s hotline, they refer the complaints to the regional bureau! (exclamation point not mine)
True or False

The Project On Government Oversight (POGO) accept calls at (202) 347-1122 and complaints here but advises that you do not use government phone, fax or computer.
True or False

When everything else fails — Al Kamen, the top afflictor of official Washington since 1993 entertains emails at intheloop@washpost.com and at kamena@washpost.com.
True or False

via Wikipedia

Now you, sir — over there – need to leave that girl alone.

If you have not read the consensual relationship policy see 3 FAM 1527(d)) ASAP.   The policy as we understand it was set up to avoid: (1) an appearance of impropriety; (2) creation of doubt regarding a supervisor’s objectivity: (3) actual or perceived preferential treatment; and (4) adverse effect on office morale and efficiency.  In addition, the policy is designed to avoid “relationships [that] may lead to allegations of sexual harassment.”

:shock:  … um, yes, we’re watching you.

Domani Spero




State Dept v. Peter Van Buren: ACLU Gets Into the Ring Over First Amendment Right

If you have been reading this blog for a while, you know that I’ve been following Peter Van Buren’s case for some time.  While I do not always agree with everything that Mr. Van Buren says and writes, I am offended by his selective treatment by the State Department that can only be described as retaliatory.

Mr. Van Buren, of course, is not the only recipient of such selective treatment in the State Department.  He’s just the loudest and the most vocal Exhibit A under the 21st Century Statecraft tab.  Other FSOs and family members have been similarly penalized for running afoul of  the department’s movable blogging and social media rules. One I know for sure, have been pushed into retirement, others suffer consequences in future assignments. Even non-blogging FSOs were threatened for the blogging activities of their spouses. For sure, very few threats come in written form but in a culture where corridor reputation is key to every assignment, no written memo is needed to screw up a future assignment in the Foreign Service.

On May 15, the American Civil Liberties Union (ACLU) got into the ring in Mr. Van Buren’s public fight with the State Department.  ACLU, the 92 year old institution told the State Department, the first agency created under our Constitution that “public employees don’t give up their First Amendment rights in exchange for a job with the government.”

The ACLU writes in its blog:

[T]he State Department has proposed firing Mr. Van Buren under the guise of a procedural rule, creating the strong appearance of unlawful retaliation. Government employees have the First Amendment right to speak as private citizens on matters of public concern. There’s no question that the subject of Mr. Van Buren’s book, blog posts, and news articles — the reconstruction effort in Iraq — is such a matter. And, government employees are often in the best position to know what ails the agencies that they work for.
The State Department is attempting to justify the firing by claiming that Mr. Van Buren failed to comply with the agency’s prepublication review policy. The State Department’s policy requires all employees to submit everything they write for prepublication review, regardless of whether they are writing in their official or personal capacity. This policy, especially as applied to blog posts and articles, raises serious constitutional questions. By forcing employees to submit all their writings for prepublication review — even articles and blog posts written on their own time — the State Department is effectively shutting its employees out of any meaningful participation in critical public debates. There is no justification for such an expansive prior restraint.

Continue reading, The First Amendment Applies to Foreign Service Officers, Too.

But writing a blog post is not enough.  The ACLU also wrote a letter to Patrick F. Kennedy, the Under Secretary for Management with courtesy copies to Linda Thomas-Greenfield, the Director General of the Foreign Service and Director of Human Resources; Jesselyn Radack & Kathleen McClellan, Government Accountability Project (who represents Mr. Van Buren in his Office of Special Counsel case) and Raeka Safai of the American Foreign Service Association.

Below is an excerpt from ACLU’s letter to Mr. Kennedy:

This proposed termination for Mr. Van Buren’s speech raises substantial constitutional questions and creates the appearance of impermissible retaliation for Mr. Van Buren’s criticism of the State Department. The Supreme Court has long made clear that public employees are protected by the First Amendment when they engage in speech about matters of public concern. A public employee’s First Amendment rights can be overcome only if the employee’s interest in the speech is outweighed by the government’s interest, as employer, in the orderly operation of the public workplace and the efficient delivery of public services by public employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

The government bears an even greater burden of justification when it prospectively restricts employees’ expression through a generally applicable statute or regulation. United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 468 (1995) (“NTEU”). By those standards, the State Department’s actions here appear to be unconstitutional.
The Supreme Court has repeatedly held that public employees retain their First Amendment rights even when speaking about issues directly related to their employment, as long as they are speaking as private citizens. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). In his book, blog posts, and articles, it is clear that Mr. Van Buren is speaking in his own voice and not on behalf of the State Department. Writing blog posts and articles from home, on his own time and on his personal computer, is a paradigmatic example of speech that public employees may legitimately engage in as private citizens. Pickering, 391 U.S. 563 (unconstitutional to discipline teacher for writing letter to the editor); Garcetti, 547 U.S. at 423 (citing op-eds as private citizen speech).

On prospective restrictions for all present and future diplomats, the ACLU writes:

[T]he State Department’s pre-publication review policy, as applied to blog posts and articles, raises serious constitutional questions. Through its policy, the State Department is prospectively restricting the speech of Mr. Van Buren as well as all present and future State Department employees. Where, as here, the restriction limits speech before it occurs, the Supreme Court has made clear that the government’s burden is especially heightened. NTEU, 513 U.S. at 468. The State Department must show that the interests of potential audiences and a vast group of present and future employees are outweighed by that expression’s necessary impact on the actual operation of government. Id. Courts have also required careful tailoring of prospective restrictions to ensure they do not sweep too broadly and that they actually address the identified harm. Id. at 475. Given this heightened standard, it is highly unlikely that the State Department could sustain its burden of  demonstrating that its policy is constitutional.

There is no justification for such an expansive prior restraint on State Department  speech. The State Department’s policy affects all employees and is broadly written to include all “matters of official concern.” This encompasses a vast amount of speech – including Mr. Van Buren’s and that of numerous other State Department bloggers – that would in no way harm the “actual operation of the government.” The overbreadth of the State Department’s policy is abundantly clear when compared with the practice of the Department of Defense. Hundreds of active-duty soldiers, many with access to classified and sensitive information, post articles and maintain personal blogs without pre-clearance and without posing any harm to military operations.

Further, the State Department’s pre-publication requirement covers even more speech than necessary to serve the government’s stated interests –to protect classified information and to prevent views of employees from being improperly attributed to the government. 3 FAM 4172.1-1. As such, the policy is not carefully drawn to ensure that it does not unnecessary chill a vast amount of protected speech, nor is it tailored to address the identified harm. See Harman v. City of New York, 140 F.3d 111, 123 (2d Cir. 1998).

You can read the entire letter from the ACLU to Mr. Kennedy here.

The ACLU makes a very compelling argument and I think for the first time, the constitutionality of that broad umbrella of all “matters of official concern” take center stage. It’s a good thing to shine a light on that dark folder. Let’s see what happens.

On a related note, the American Foreign Service Association (AFSA) in February released its guidance for personal use of social media.   The union represented Mr. Van Buren in his grievance case within the State Department but has been largely silent in this very public fight.  Mr. Van Buren has now asked  AFSA if the union is willing to press State into a rational set of regulations on social media:

“We all know that many FSOs and their spouses/partners have been unofficially penalized for blogging, and pushed into going off line. At the same time, we also know there are many, many blogs out there by FSOs and others and that the number grows. Anyone think social media is going to be less a part of life in the next ten years?

I have taken an extreme position on these issues, and know that you have not always (or often?) agreed with what I wrote. That is in fact how it should be, because the issue at hand should not be about the content per se, but the right to write it.

I fully agree that State needs rules about social media; they currently really have none that are realistic and implementable and in fact are considered unconstitutional by America’s leading First Amendment group.

Would AFSA now be willing to make a public statement along these lines and use my case to press State into a rational set of regulations on social media?

So — I’m sitting here, after midnight, pondering — is AFSA up for this challenge? Guess, we’ll have to wait and see …

Domani Spero



JFK Profile in Courage Award Honors U.S. Ambassador to Syria, Robert S.Ford

US Ambassador to Syria, Robert S. Ford was presented with the John F. Kennedy Profile in Courage Award™ on May 7 at the John F. Kennedy Presidential Library by Caroline Kennedy . He was honored for his bold and courageous diplomacy which has provided crucial support to Syrians struggling under the brutal regime of Syrian president Bashar al-Assad.

U.S. Ambassador to Syria Robert S. Ford

Below is excerpted from the JFK Library announcement:

Robert Ford, United States Ambassador to Syria

Robert S. Ford began serving a recess appointment as the U.S. Ambassador to Syria in January 2011. A few short weeks after his arrival, a wave of prodemocracy protests swept through the Middle East and public protests in Syria launched an uprising against the brutal regime of Syrian President Bashar al-Assad. A former Peace Corps volunteer and then career member of the U.S. Foreign Service, Ford’s robust diplomacy on the ground in Syria centered on a strong show of support for the Syrian opposition movement. At personal risk, he traveled all over the country, talking with the Syrian people and using social media to encourage dissidents to embrace forms of non-violent protest against government-backed brutality.

Ford’s courageous support for the opposition garnered global attention in July 2011, when he visited the city of Hama in advance of planned demonstrations there. Ford’s physical presence in Hama, without official sanction from the Syrian government, functioned as a visible statement of support for the demonstrators and an unambiguous rebuke of the government-backed violence against them. In an August 2011 interview with ABC News, Ford spoke resolutely against the government’s violent crackdown: “I don’t particularly care [if Syria is angry], because we have to show our solidarity with peaceful protestors. I’d do it again tomorrow if I had to…I’m going to keep moving around the country. I can’t stop.” This and other explicit displays of solidarity with the Syrian people stretched the usual bounds of formal diplomacy and put his own safety at risk.

After his visit to Hama, the Associated Press reported assaults on Ford’s residence and convoy. Despite such attacks, Ford continued to support the opposition by attending protestor funerals, speaking with Syrians on the ground and through social media, and educating Americans via satellite images and descriptions of the conflict on the embassy’s official Facebook page. On February 6, 2012, as the violence in Syria worsened, the United States closed the American embassy and removed Ambassador Ford from the country. Robert Ford continues to serve his post from Washington, D.C.

Ambassador Ford is one of the four recipients of the 2012 award.  Three former Iowa Supreme Court Justices who were removed from office by Iowa voters after joining a unanimous decision to legalize same-sex marriage in that state were also presented with the John F. Kennedy Profile in Courage Award™ today.  “Former Iowa Chief Justice Marsha Ternus and former justices David Baker and Michael Streit were chosen in recognition of the political courage and judicial independence each demonstrated in setting aside popular opinion to uphold the basic freedoms and security guaranteed to all citizens under the Iowa constitution.”

About the Award:  “The John F. Kennedy Profile in Courage Award™ is presented annually to public servants who have made courageous decisions of conscience without regard for the personal or professional consequences. The award is named for President Kennedy’s 1957 Pulitzer Prize-winning book, Profiles in Courage, which recounts the stories of eight U.S. senators who risked their careers, incurring the wrath of constituents or powerful interest groups, by taking principled stands for unpopular positions. The John F. Kennedy Library Foundation created the Profile in Courage Award™ in 1989 to honor President Kennedy’s commitment and contribution to public service. It is presented in May in celebration of President Kennedy’s May 29th birthday.”

Read the full announcement here.

Domani Spero

You’ve been in Afghanistan too long without R&R when ….

US National Guard Photo by Sgt Russell Lee Klika

A Ttwenty-something development worker in Afghanistan writes about when you know you’ve been in Afghanistan too long without R&R.


— you start using Afghan insults against other expats.

—you know the pricing scale for contract killings in your city.

—you don’t scream when you find a toenail in your bread, you just pick it out.

—you find it kind of gross but not at all weird when the hotel reception clerk is staring at full-screen photos of dismembered corpses on his computer when you check in.

—you know how to walk in a burqa like an Afghan woman.

—you have a list of people you’d love to send phony Taliban night letters, and that list is four whole pages long. Single-spaced.

Check out her full list here.