Hillary Clinton’s use of a personal e-mail account while serving as secretary of State may not have broken the law though it exposed her to hacking and ran counter to the Obama administration’s policy of preserving electronic records.
Security specialists say she also failed to take adequate precautions to safeguard the account -- which she used for all her official business.
"It’s not clear to me whether any laws were broken," said John Wonderlich, policy director of the Sunlight Foundation, a Washington-based nonprofit that advocates for government transparency. "What clearly was violated was our public expectations for how public records work."
The revelations come as Clinton is preparing to announce a campaign for the Democratic nomination for president as soon as April. Her activities at the State Department and her work with the foundation already are providing fodder for Republican critics who say Clinton hasn’t been fully transparent about her activities at the State Department.
The use of a private e-mail by Clinton, who served as secretary of State from 2009 until February 2013, was discovered after a congressional committee sought Clinton’s e-mails during its investigation into the terrorist attack in Benghazi, Libya, in 2012. The attack killed four Americans, including U.S. Ambassador Christopher Stevens.
Deputy Press Secretary Marie Harf said Secretary of State John Kerry is the first in his position to rely primarily on a state.gov e-mail account.
Harf said that the State Department has "no indication that Secretary Clinton used her personal e-mail account for anything but unclassified purposes." While Clinton didn’t have a classified e-mail system, she had multiple ways of communicating in a classified manner, including assistants printing documents for her, secure phone calls and secure video conferences.
"The use of a personal e-mail address to skirt public records laws, aside from failing to meet the security standards one would expect of the nation’s top diplomat, enabled Clinton to shield her official communications from scrutiny by the media and the American public," California Representative Darrell Issa, the Republican former chairman of the House Oversight and Government Reform Committee said in a statement.
"Transparency matters," said Republican Jeb Bush, the former Florida governor and likely 2016 Republican presidential candidate, said on Twitter. Bush voluntarily released in December more than 250,000 e-mails from his time as governor.
Prior to Kerry, secretaries of State didn’t regularly use an official State Department account, according to an agency official who wasn’t authorized to discuss the matter on the record. Colin Powell installed a personal laptop in his State Department office and used personal e-mail to communicate with ambassadors and foreign ministers as well as his assistants. On trips, he would often access the e-mail account from various embassies around the world.
"The Clinton case is just the most recent example of a cavalier attitude toward the public record," said Tom Blanton, director of the National Security Archive, a private, nonprofit group based at George Washington University that was founded to counter government secrecy. "There’s a difference of opinion" about whether Clinton broke the law, he said.
In 2011, President Barack Obama ordered Clinton and other department heads to improve management of electronic records, including e-mails and social media. In response to criticism of Gary Gensler, the head of the Commodity Futures Trading Commission, and officials at the Department of Energy for using private e-mail addresses, the National Archivist issued guidance in 2013 saying government "employees should not generally use personal e-mail accounts to conduct official agency business."
While that guidance came after Clinton left office, its message should have been self-evident before hand to public officials, a former archives lawyer said.
A regulation issued in 2009 established that electronic records of government business must be saved. So, even before the 2013 guidance, "the use of a private account was to be rare and occasional, and not to be the norm," said Jason R. Baron, a lawyer at DrinkerBiddle and former director of litigation at the National Archives and Records Administration. "To solely use a personal e-mail for four years is something that is highly unusual," Baron said. Using a private account "without using an official account is inconsistent with the Federal Records Act."
Obama signed an amendment to the Federal Records Act in November that makes the rules explicit. It says messages federal employees send on personal accounts must be automatically forwarded to an official account or sent to that account within 20 days. The measure wasn’t in effect when Clinton served in the administration.
White House spokesman Josh Earnest said, "We encourage people to use their official government e-mail accounts when they’re conducting official government business."
"It is the responsibility of agencies to preserve those records even when those records exist on a personal e-mail account," he said Tuesday.
Clinton showed a surprising lack of security awareness by using private e-mails and put communications at risk of being intercepted by hackers and foreign spies, said Ken Westin, a security analyst with Tripwire Inc. based in Portland, Oregon.
Westin examined the registration of Clinton’s domain, clintonemail.com, which she established to support her e-mail account. She established the domain in January 2009, the month she became secretary, through Network Solutions LLC based in Jacksonville, Florida. It’s a paid service, unlike free Gmail or other e-mail services, and the person who registered the domain is private.
However, a simple step to secure the domain wasn’t turned on, Westin said. "It’s a minor thing that someone who was concerned about security would implement on that domain," he said.
"She’s not a trained IT professional so I don’t think there would be anyway for her to know if she’s been compromised," he said. "If I were a foreign nation and I gained access to this e-mail account, I would want to be very quiet about it."
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