The White House E-‐Mail Destruction Scandal of 2007
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The White House E-Mail Destruction Scandal of 2007 A Case Study for Digital Heritage1 Myron Groover Abstract The 2007 controversy surrounding the e-Mail transmission and retention practices of the George W. Bush Jr. White House marked the beginning of a pivotal episode which saw the idea of digital preservation itself pushed to the forefront public consciousness. It culminated in a lengthy and conspicuously inconclusive lawsuit which saw both the National Archives and Records Administration and the Executive Office of the President as co-defendants; a lawsuit which was eventually resolved out of court when the White House changed political hands. The events concerned, and the extrajudicial resolution which effectively closed the case, have much to tell us about the politics – and laws – which impact the present and future state of digital heritage in the United States and worldwide. I present here a brief overview of the scandal, the contexts surrounding it, and some lessons we might hope to learn from the events concerned. Author Myron Groover is an archivist at the Vancouver Holocaust Education Centre and a member of BCLA's information Policy Committee. He holds an MA (hons) in History from the University of Aberdeen and recently completed his MAS and MLIS at the University of British Columbia. During the course of his academic and professional work with public libraries, archives, and other heritage institutions, he has developed a keen interest in the ways archival and library theory (and practice) influence and relate to the shaping, maintenance, and legitimization of discourse within contemporary and historical nation-states. 1. Introduction The records of governmental bodies, particularly at higher judicial, legislative and executive levels, are as invaluable as they are irreplaceable. They are the living records of a society's life and are the rightful heritage not only of that society's citizens but indeed of the entire world – a world which will one day look to them in its attempts to make sense of its past just as we look to the records of past governments today. Imagine, for example, what our understanding of Nixon's presidency might look like without the Watergate tapes; now imagine how immeasurably the digital revolution has changed the scale of what's at 1 This work represents a distillation and maturation of my work to date regarding these events. I wish to thank Jason R. Baron in providing comments on an earlier draft of this paper; the views expressed herein are entirely my own, however, as are any errors or omissions. stake since then. The digital arena enables us to preserve more and better records than has ever been possible in human history – but it also presents us with similarly unprecedented opportunities to tamper with, destroy, or even lose those records outright. The 2007 controversy surrounding the e-Mail transmission and retention practices of the George W. Bush Jr. White House was an important watershed moment for digital heritage. While it was by no means the first time a United States presidential administration found itself in hot water over electronic record-keeping, it did mark the beginning of a particularly pivotal episode which saw these weighty issues – and the very idea of digital preservation itself – pushed to the forefront of public consciousness. It culminated in a lengthy and conspicuously inconclusive lawsuit which saw both the National Archives and Records Administration and the Executive Office of the President as co-defendants; a lawsuit which was eventually resolved out of court when the White House changed political hands2. The events concerned, and the extrajudicial resolution which effectively closed the case, have much to tell us about the politics – and laws – which impact the present and future state of digital heritage in the United States and worldwide. This paper will give (1) a brief synopsis of the political and administrative contexts surrounding the controversy, (2) a limited chronology of the events which precipitated it and brought it to resolution, and (3) an investigation of the ongoing legal and ethical issues highlighted by the incidents concerned. All these components will focus on the inadequacy of current safeguards in the United States to protect and preserve digital heritage artefacts generated by powerful administrative bodies – ultimately, as a candid investigation of the existing legal and administrative frameworks will show, it is too easy for attitudes and practices regarding digital heritage preservation at higher levels of government to be dictated by political will rather than a spirit of compliance and accountability. This situation is untenable, so my presentation will conclude with (4) a series of questions and recommendations which may serve to inform the development of future decision-making regarding the digital heritage of higher governmental bodies both in the United States and around the world. 2. Background and Context Controversy surrounding the e-mail practices of the federal government did not begin in 2006 when the first public murmurings that all might not be well with the Bush administration’s electronic record- keeping began to surface3. Indeed, as prior scholarship has pointed out, legal wrangling over the statutory obligations which surround the preservation and destruction of federal e-mail dates back to at least the late 1980s when the grounds were laid for what would be the first of many rounds of litigation surrounding the PROFS e-mail system in use by the National Security Council and other federal bodies at the time. The scandals of 2007 took place not only in light of a long and complex litigative legacy but also in the context of the unprecedented rise of the internet itself as a phenomenon – the electronic 2 It is significant, if perhaps not unusual, that the circumstances of the scandal first became known only coincidentally. The initial evidence came to light as a side-note of unrelated investigations into the Bush administration – one regarding the Plame Affair and one regarding the dismissal of US Federal attorneys for political purposes – and without these broader scandals the events discussed here would have taken an entirely different shape. 3 For more information on the circumstances surrounding the early days of the scandal and the media coverage thereof, see Media Matters Research Team. “Media Largely Ignored Fitzgerald Revelation that White House May Have Destroyed Emails.” Media Matters for America. http://mediamatters.org/research/200602020012 (accessed August 31, 2012). 2 landscape of the second George W. Bush administration was markedly different than that which predominated in Oliver North’s day, but many of the actual blunders involved in the Bush scandal bore a remarkable similarity to the events which gave rise to the original PROFS case4. From a statutory viewpoint, there are two key pieces of federal legislation in the United States which treat very directly on the subject of presidential records. The most notable is the Presidential Records Act5, first passed in 1978 and amended three times subsequently, which holds as a central tenet that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records6” and that: “...[t]hrough the implementation of records management controls and other necessary actions, the President shall take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records pursuant to the requirements of this section and other provisions of law”7 In 2002, President Bush amended the law by executive order to severely curtail the public availability of records preserved because of the legislation8,9,10; he did nothing, however, to alter the fundamental requirement that presidential records be maintained in the first place. Any destruction of e- Mails which fall under the purview of “Presidential Records” as outlined above – whether deliberately, at the whim of staffers or party leadership; or unintentionally through neglect and incompetence –constitutes a clear violation of the PRA. Another significant law influencing the ongoing discourse around defining the norms of presidential record-keeping is the Hatch Act of 1939, which was originally passed to curb alleged 4 Baron, Jason. “The PROFS Decade: NARA, E-mail, and the Courts.” In Thirty Years of Electronic Records, edited by Bruce L. Ambacher, 105-37. Lanham: Scarecrow Press, 2003. 5 United States, Congress, 1978, Presidential Records Act, United States Code, Title 44, Accessed 7 April 2010; available from http://en.wikisource.org/wiki/Presidential_Records_Act_of_1978 6Ibid., §2202 “Presidential Records” are here defined as: “... documentary materials, or any reasonably segregable portion thereof, created or received by the President, his immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise and assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President ... includ[ing] any documentary materials relating to the political activities of the President or members of his staff, but only if such activities relate to or have a direct effect upon the carrying out of... official or ceremonial duties of the President.” (§2201) “Documentary materials” are defined as: “... books, correspondence, memorandums, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures, including, but not limited to, audio, audiovisual, or other electronic or mechanical recordations” (§2201) 7 ibid., §2203 8 George Bush, “Source Material: Executive Order 13233 [Federal Register Vol. 66, No. 214, November 5, 2001] Further Implementation of the Presidential Records Act,” Presidential Studies Quarterly 32, no. 1 (Mar., 2002): 185-89, http://www.jstor.org/stable/27552373 (accessed August 31, 2012).