Public officials have always kept certain documents private. Our technology just doesn’t let them do that anymore.
FROM POLITICO | MARCH 10, 2015
For Hillary Clinton—and most of Washington—email-gate may be a relatively new issue, but it is an issue with a decades-long pedigree in American history. Once upon a time, in the era before email and whose “server” was whose, it wouldn’t have been an issue at all: Dean Acheson, for instance, lived in no fear that the public would have access to his personal letters musing about the intentions of Stalin or the presence of possible Soviet spies in the State Department alleged by Joe McCarthy, or any number of other matters of state. Long before that, presidents in particular were free to keep or dispose of their papers as they saw fit; one obscure president, Chester Arthur, sealed his obscurity by instructing his family to burn his papers after his death.
And that was a rule of thumb for anyone in the old days: You could decide on your own what was public and private, and what you wanted to keep and what you wanted to destroy.
It is only in the last few decades that our entire understanding of what is public and what is private, who controls information, who owns it and who has a right to it, has become deeply and destructively muddled. Clinton’s attempt to carve out some sphere of privacy stems directly from a political culture that has seemingly managed the worst of all possible worlds: a fetish to classify as much as possible on the one hand, and on the other a surveillance and gotcha culture that seeks to make the keeping of secrets impossible.
One problem is that government protocols about e-mail and instant message retention have evolved much more slowly than the technologies have. What’s more, there used to be a bright line between personal and public papers, or between official and unofficial correspondence, with it fully understood and unquestioned that high officials could and would maintain a considerable corpus that they and they alone would control, own and determine access to.
The watershed here, as in so much else in contemporary politics, was Watergate. That scandal shed light on what had been common practice, namely for presidents and high officials to keep separate public and private records. Before Watergate the public records would be retained by the government, but the private records were treated the same as the papers and diaries of any private citizen—one reason why so many personal and professional records from the 19th century have been lost. It was understood that even public servants have a legitimate sphere of privacy.
Presidents and officials throughout the 19th and early 20th century tended to be voluminous letter writers. That, after all, was how most communication occurred, other than face-to-face meetings. It is why the papers of Thomas Jefferson include more than 18,000 letters. Presidents and officials often meticulously kept their records, wanting to maintain an archive for that fuzzy muse “posterity.” But, and this is crucial, there was little notion that the public however defined had a right to read those letters, except those written purely in an official capacity.
Since the 1970s, however, the abuse of that privacy, along with abuses of executive authority, led to the Presidential Records Act of 1978, which created a clearer distinction between public and private records. Much of that stemmed from President Nixon’s attempt to forestall requests for documents about the Watergate affair, and for tape recordings, on the principle that they were his private papers and recordings to dispose of as he saw fit. The Presidential Records Act sat side by side with the earlier Federal Records Act, which established guidelines for how government agencies were to archive their material and turn it over to the National Archives. All of these laws were passed when records were kept primarily on paper, with some notable exceptions such as that audio recording system installed the Oval Office. All of these laws exempt some national security communications from release on a case-by-case basis, as well as certain communications between a president and his advisers, and the same pertains to other high officials. None of these laws covered what has become the primary means of communications: email.
Meanwhile, the post-Watergate culture of Washington and of the press led to a near-continuous culture of scandal, which not a single president has been immune to. Reagan and Iran-Contra, George H.W. Bush and Iraqgate, the Clintons from Whitewater to Monicagate, George W. Bush about yellow-cake and intelligence, the Obama administration from IRS investigations to Benghazi and Fast and Furious. That has led to near continual subpoenas for documents from executive officials.
At the same time, the brief interregnum after the end of the Cold War in 1989 saw a thawing of the culture of government secrecy that came to an abrupt end with the attacks of 9/11. Having begun to loosen its hold on secrets and release more information, the government started to classify more and more, creating a new culture of secrecy brilliantly charted by Washington Post reporters Dana Priest and William Arkin in their expose series “ Top Secret America.”
The impenetrable wall of secrecy in turn led to a series of battering rams on the left and the rights, uniting libertarians and Tea Partiers who saw in that culture proof not just of government overreach but of dark attempts by executive authorities to seize power.
Despite this shift in public opinion, it has taken the federal government, in this case both Congress and the executive branch, a very long time to update the laws to reflect the massive shift away from paper trails and toward electronic ones. As many have noted this week, not until November of 2014 did President Obama sign a bill (H.R. 1233) that amended and clarified the records act to address directly the question of whether federal employees could use personal email accounts and in what capacity.
Much of that bill addresses how long presidential records can be kept classified, but one section, crafted in part by Rep Darrell Issa, specified that federal employees could continue to use personal email for official business provided that copies of those emails are sent to the relevant agency and then preserved in accordance with the act. The only clear prohibition of personal e-mail accounts is on “non-official electronic messaging accounts” that are used to create apresidential record, though precisely what constitutes an official presidential record is also left undefined.
There is no small irony in the fact that the language of Issa’s provision allowing for some use of personal email came from a congressman who has long been the pointed edge of the scandal spear, especially when pointed at Democrats. The law may have been passed two years after Hilary Clinton left office, but it is now the centerpiece of a controversy over her attempts to keep her emails from leaks to people like Issa who might attempt to use such emails to create political firestorms.
Hillary Clinton is hardly the only official to come under fire for not adequately revealing her correspondence. The chair of the Federal Reserve, Janet Yellen, was aggressively questioned during her testimony to congress recently about inadequate transparency of her correspondence and meeting notes. Rep Scott Garrett (R-NJ) suggested that she was losing her independence and that her meetings with the White House, because transcripts were not disclosed, fostered that impression. Yellen shot back, “Those are private one-on-one meetings and I don’t think it’s appropriate. … If I had breakfast with you, I would not make a transcript of what we had discussed at breakfast.”
Yellen directly rebutted the notion that everything officials do can and should be exposed to public scrutiny. Certainly, there are some questions to be answered about how then-Secretary Clinton managed classified communications, and she will undoubtedly have to address that. But her decision to install a private server and not rely on official email speaks to a decades long march away from a time when a line could be drawn between public and private and when the dual cultures of excessive government secrecy was not twined with a culture that excessively seeks scandal. The result has been an unhealthy warping of policy discussions to circumvent a culture of gotcha, combined with far too much information being classified in an attempt to keep adversaries and critics at bay, however unreasonable those adversaries are.
It would be quaint and unrealistic to expect a return to a time when public servants could carve out a private space for themselves to work through difficult issues along with other officials without concern that such deliberations would be used against them. The rapid shift away from paper documents toward email and now texting has only complicated the issue of privacy, as the entire imbroglio over NSA spy programs amply revealed. Here too there is the irony that Hilary Clinton was attempting to preserve some privacy while serving in an administration that has been widely accused of not respecting such privacy in authorizing surveillance programs.
The fact that there has only been official legal clarity for three months about how and under what circumstance official can use private emails underscores how unresolved these questions are. And in all of this uproar, we should not forget that all of the focus is on the retention of federal records of the executive branch. Neither Congressional representatives nor the Supreme Court are under anywhere near the level of requirements to disclose or maintain their records. In many ways, Congress approaches the executive branch with a stance of secrecy for me but not for thee.
In short, our officials have too much secrecyand too little privacy simultaneously. Hilary Clinton’s private email system is a direct response, and one that it would appear now did not succeed. And until we develop a more balanced attitude toward power, privacy and the public right to know much but not all—as well as the government’s right to know much but not all about us—we will find ourselves ricocheting between extremes, hobbling our ability to function even more.