RNC won't bother to recover emails

The RNC is reneging on its promise to attempt to restore the "lost" emails on its servers:

After promising last year to search its computers for tens of thousands of e-mails sent by White House officials, the Republican National Committee has informed a House committee that it no longer plans to retrieve the communications by restoring computer backup tapes, the panel's chairman said yesterday.

The move increases the likelihood that an untold number of RNC e-mails dealing with official White House business during the first term of the Bush administration -- including many sent or received by former presidential adviser Karl Rove -- will never be recovered, said House Democrats and public records advocates. [WaPo]

Somebody needs to serve the RNC with subpoenas for all their hardware.

It's ridiculous that the RNC is allowed to conduct the recovery operations in the first place. They have no incentive to succeed and every opportunity to sabotage the mission.

If the RNC doesn't hand over the hardware, our next president's first official act should be to order US Marshals to raid RNC headquarters and seize the computers--or at least copy all the data on them at take it back for independent analysis.

There's an ongoing legal dispute about whether those emails must be preserved. These emails may be key evidence in any number of criminal and civil disputes. The RNC must not be allowed to do anything to those emails until these disputes have been resolved.

Comments

[parse]

Lindsay, you say that "the RNC must not be allowed to do anything to those emails until these disputes have been resolved." But you haven't complained about anything the RNC is doing (or plans to do with the emails) but what it hasn't done--which is to take steps to restore them using backups. I'd like to hear from someone with some legal expertise weigh in on whether this makes a difference. Is there a difference between, on the one hand, forbidding someone from destroying evidence in a case and, on the other hand, ordering them to take steps to recover evidence? If the RNC continues as it has announced--refraining from any efforts to retrieve the communication by restoring backups--is there anything that would make it impossible to require them to do that in the future once the legal dispute regarding whether the emails must be preserved is resolved? Is it the case that if the tapes aren't restored now, the opportunity to ever restore them will be lost? And if the opportunity is lost, and it is later determined that the emails should have been preserved, are those in the RNC making the decision not to restore the tapes now liable for charges of obstruction of justice or something similar?

[Lindsay Beyerstein]

We should not be depending on the RNC to maintain the integrity of these disputed files. There's a clear conflict of interest.

We need to get federal investigators in there to independently document the system as it exists today. It's like taking pictures at a possible crime scene. The homeowner can clean up the bloodstains, but not until the police have collected and cataloged the evidence.

Once the investigators have had a chance to look over the system and make a complete backup of its contents, the RNC can do whatever it wants with its property.

[parse]

Lindsay, you didn't respond to the points I addressed. It's seems what the RNC is saying is not "I want to clean up the bloodstains" but "I'm not going to spread luminol around." It would seem a key factor in evaluating the RNC's position is whether the failure to restore the backups now prevents a restoration of the back ups later. Otherwise, it's the RNC's failure to act that your criticizing, not some action they have taken that impedes an investigation.

I think there's a case pending now where a prosecutor wants a defendant to give the government the password the defendant's computer so the state can search the hard drive for evidence of a crime. There seems some similarity to me here.

[Lindsay Beyerstein]

We should not let suspects secure a crime scene.

The article I link to above is about how the Republicans have halted their efforts to recover the emails--i.e., how they were allegedly trying, but have now given up.

Administration officials defended their efforts to fix the problems, and said they are still working to locate and identify e-mails reported as missing. "We are very energized about getting to the bottom of this," said Theresa Payton, chief information officer at the Office of Administration. [WaPo]

They shouldn't have been allowed to try in the first place. They should have handed over all the damaged files to investigators for recovery by independent experts.

The question is whether RNC employees or federal investigators will do the recovery. In the interests of justice, federal investigators should get the first crack. What the RNC wants to do with their copies of the files is up to them.

It's just ridiculous that Congress entrusted the email rescue effort to the very people who are fighting for the right to keep the emails buried forever. We can only assume that the RNC wants to keep these emails buried forever because they might be used as evidence for future prosecutions and lawsuits.

The system needs to be safeguarded before the RNC mucks with in any more. A lot of damage could be done under the pretext of a recovery effort. If nothing else, letting the suspects dig around in the evidence compromises the chain of custody.

The whole system should have been copied and preserved. That would have been the clean copy for investigators to work from when the RNC couldn't or wouldn't recreate the emails itself. Also, it was a foregone conclusion that those records would be pored over by the feds. Nobody would trust the RNC's claim that it had recovered everything. Independent investigators would have had to go in regardless.

It's not too late to get in there and make an independent record before more damage is done.

[Lindsay Beyerstein]

Of course, once the feds get the snapshot, the RNC is welcome to do whatever it wants with its own computers--including recovering email, or not.

What's important is preserving the entity that is the subject of the dispute. Happily, in the digital age, that's not a zero sum game. The feds and the RNC can both have the data.

[parse]

Let me get this straight--you want to make sure that the Justice Department (you know, Bush's Justice Department has broad powers to search the computers of a third party because someone who was sending illegal emails might have sent the mail via that computer? You want to make sure that the government has access to the emails on the server of a political party, probably because you are confident that while it might be used against people like the Republicans, and maybe even the Democrats, it would never be used against a party like, say, the Greens?

[Dabodius]

"You want to make sure that the government has access to the emails on the server of a political party..."
If they're evidence for malfeasance and felonies, and not privileged, why not, parse?

[parse]

I don't think anyone is claiming every email on the RNC's computer is evidence of malfeasance and felonies, but Lindsay wants to give a "clean copy" of the entire system to government investigators. I guess I want more restraint on goverment investigators, even when their targets are groups I have serious political differences with.

[Ted Powell]

I don't think anyone is claiming every email on the RNC's computer is evidence of malfeasance and felonies...

Are you sure you've read the article Lindsay linked to? The main issue (IMHO) is not RNC emails sent by RNC people through RNC computers, but rather White House people sending official White House messages through RNC computers instead of sending them through White House computers. The whole point of sending official messages through official channels is so that they can be preserved for posterity. From the article:

The RNC dispute is part of a broader debate over whether the Bush administration has complied with long-standing statutory requirements to preserve official White House records -- including those reflecting potentially sensitive policy discussions -- for history and in case of future legal demands.

Whoever goes through the backed-up data (if it ever happens) should properly—as far as this exercise is concerned—ignore not only non-email data, but also ignore all emails except those from/to White House people who were using RNC accounts to bypass the official White House system.

As for the urgency of getting hold of the backup tapes—what if some low-level person (remember, plausible deniability!) were to let the stock of blank tapes run out, and then "have to" start reusing older tapes?

[Lindsay Beyerstein]

There's no new or unusual power of search or seizure involved.

The dispute is about whether the administration is required by law to preserve this information. It's generous to call it a dispute. The RNC is contesting the letter of the law and the records policy that Alberto Gonzales himself wrote while he was White House counsel: Government business by email must either go through government addresses, or the government employee must forward a copy of all mail exchanged through an outside account to his or her own official account.

There's no question that official government business must be archived. Email is just another kind of correspondence. If I'm a White House official, I can't conduct government business by snail mail and later claim that I didn't need to archive it because I wrote the letters on my personal memo pad that I bought with my own money at Staples. It's the same principle with email. If you're doing government business, you're subject to record-keeping regulations.

These people work for us, and we have a right to know what they're doing on our behalf. If there's some reason why those documents aren't accessible to anyone who wants to file a FOIA, that information must at least be preserved in a secure form for internal purposes. If the president gave a damn about his job, he'd want to be able to access a proper archive of the correspondence of his senior staff during the run-up to the Iraq war, for example.

The overwhelming presumption at this point is that government business emails must, by law, be archived. If the only record resides with the RNC, the government has a right to a copy. If the RNC refuses, a crime has either been committed, or is about to be committed. I.e., if and when RNC decides to junk the hardware that encodes the relevant data, or sabotage their own system, they will have knowingly destroyed official records.
Those emails still exist, they're just in a form that we can't read easily. The traces may be degraded, but they're still there. If they had ceased to exist, there would be no talk of recovering them.

The RNC has no right to keep any PUBLIC RECORDS secret, nor to deny everyone else the chance to see them, including our elected representatives in Congress.

[Lindsay Beyerstein]

It's not controversial for investigators to seize entire file cabinets or entire computers when records are subpoenaed.

Let me give you an example from a case that I covered. A couple years ago, a CT substitute school teacher was accused of deliberately showing internet porn to the students in her class. There was no suggestion that everything on that computer was pornographic, on the contrary, everyone knew that at least the vast majority of the files on that computer were clean. The only "suspect" was a substitute teacher who was borrowing the machine for the day.

With a warrant, the authorities took the computer, made their own copies of the contents, and gave the machine back to the school. Nobody thought this was unusual or inappropriate in any way, not the prosecution and not the defense.

The RNC could forestall or even avoid the problem by cooperating with the investigation. For example, when Abramoff was investigated, Senate staff asked Greenberg Traurig and Preston Gates Ellis to hand over the emails correspondence of Abramoff and his team. The feds ask, "Are you sure you've given us everything? We're not going to find out six months from now that you were deliberately holding out on us? Because then you'd be in really deep trouble..."

Supposed these GT and PGE had pulled an RNC and said, "Nope, we're not going to tell you where Abramoff's emails are in our records." In that case, the feds would have had a right to take larger chunks of records, provided they convinced a judge that these bigger bites were necessary to get the evidence.

[dr2chase]

And, surely, you have heard of "document retention policies"? That's newspeak for "no document survives a second longer than is required by law". All the RNC has to do is dilly-dally until their pre-existing DRP kicks in, and oopsie-daisie, the tapes are erased.

[dr2chase]

And, surely, you have heard of "document retention policies"? That's newspeak for "no document survives a second longer than is required by law". All the RNC has to do is dilly-dally until their pre-existing DRP kicks in, and oopsie-daisie, the tapes are erased.

[dr2chase]

I only clicked Post once, dadgummit, and I did not reload the page.

[mudkitty]

Promise? What about their legal obligation and responsibility?

[milo]

wow, this is like watching the blind leading the blind, or rather the ignorant explaining stuff to the ignorant. As far as I can tell, not one of you has the slightest clue about the relevant law here, but you've all got long winded and passionate opinions. *That* is exactly what I find both annoying and fascinating about this website. And I'll admit, this is a (rare) instance where I am equally ignorant as you, but I'm smart enough not to have an opinion.

Meanwhile, my 17 years younger GF think I'm God.

[parse]

Ted, I did read the article. As you point out, it's not the RNC that's under suspicion, but people who may have used (as near as I can figure out) the RNC's mail server to send email they should have used government mail servers to send. And Lindsay seems to thinks, as a result of that, investigators should have access to all the email in the RNC's server. What about the other people who have email on those servers?

Also, as far as I can tell, the RNC hasn't denied any request for information. They just said, "We aren't going to do anything to restore data that's already been deleted." There's a difference between punishing people from obstructing an investigation and ordering them to take steps to actively aid an investigation.

Now suppose instead of the RNC's server, the officials were suspected of using a commercial ISP to send the emails. And suppose it were your ISP. Would you want the government to have the right to look at all the emails on the system?

Lindsay, your example of the teacher being investigated highlights one of the differences--you point out that they took the computer the substitute teacher was using. But did they take every computer in the school? Did they ask for a "clean copy" of the entire system of the ISP that provided internet access to the school, which is what you've proposed in the case of the RNC?

When you give government broad police powers, I think you should be concerned that investigators are likely to use them. And it probably won't be long before they use them in ways that give you cause for concern.

[Matt T.]

Meanwhile, my 17 years younger GF think I'm God.

And she's remarkably easy to impress, too, apparently. Tell me, is she an exotic dancer, a supermodel, a gourmet chef and does her daddy own a liquor store, too?

'Course, I'm assuming by "GF" you mean girlfriend. You're unhinged enough it could mean "gorilla flounder" for all I know.

[Catherine Morgan]

I wanted you to know, that I nominated you for Women's Voices Making History. Your blog is on my list of over 300 women blogging about politics, and I am currently going through it, and nominating blogs that I think are most worthy. Anyone can nominate a blogger, so if you have others you would like to nominate, all you have to do is go to the site at Women's Voices, Women Vote. :-)

Best,

Catherine

[Catherine Morgan]

I wanted you to know, that I nominated you for Women's Voices Making History. Your blog is on my list of over 300 women blogging about politics, and I am currently going through it, and nominating blogs that I think are most worthy. Anyone can nominate a blogger, so if you have others you would like to nominate, all you have to do is go to the site at Women's Voices, Women Vote. :-)

Best,

Catherine

[milo]

Oh, Natasha is a very junior prof of philology at Moscow State. And what is it about womyn bloggers? They're always giving each other empty and ridiculous "sheroe" awards. And shouldn't it be "herstory"?

[cfrost]

I'm still waiting to hear what's on Nixon's 18 minute gap.

[cfrost]

Meanwhile, my 17 years younger GF think I'm God.

Sad.