THE BLOG

It's Not Gone 'Til It's Gone

03/18/2015 10:16 am ET | Updated May 17, 2015

The press and the political chattering classes have not covered the Hillary Clinton email story appropriately. What is not being discussed is really where the story lies. The federal requirement is that all government emails on any personal account be transferred to a government server so that all relevant emails are captured for backup purposes and history. At some point, government transparency through the Freedom of Information Act (FOIA) will allow most emails to be accessed by the press and the American public unless they qualify as one of the exemptions in the FOIA, which includes one for personal privacy.

Let's be clear, Secretary Clinton did not break any law; she simply created an issue for her impending campaign around trust and judgment. Why are the press and Clinton detractors up in arms about her "dark" or private server? Delete does not mean delete.

The federal email regulation states "Agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system." Secretary Clinton as the head of the State Department was responsible for creating and preserving the email records. Good, bad, or indifferent, Secretary Clinton made the determination that she was allowed to have a private server to make email management more "convenient."

The 55,000 pages of emails that Secretary Clinton has given to the State Department are those which she determined to be work related. The Clinton detractors and press are yelling "we don't know what Secretary Clinton deleted before she turned over the emails." Exactly.

What the detractors are really saying is delete does not mean delete. Had Secretary Clinton maintained the email on a system maintained by the government, there would be an audit trail of all the emails that Secretary Clinton deleted and the records could be retrieved from back-up copies maintained as part of a disaster recovery or business continuity plan. Then they could be leaked.

A disaster recovery or business continuity plan is devised to recover electronic information in the event of a natural or human induced disaster. After a hurricane, companies with robust business continuity plans may be able to recover data because they have backups of information at another secure location. Therefore information, including emails, can be completely recovered. The importance of information back-up, and disaster recovery plans, is that each allows an organization to recover data that has been lost or deleted. A company can rebuild the system beginning March 15, 2005, yes 2005, if the back-up files go back 10 years. Through the back-ups you can look at exactly what the system looked like on any specific date, rebuild subsequent days' transactions from stored back-up information and know what each day looked like until you arrive at the last day that data was backed up, say March 15, 2015.

Why is this important? Nothing that deleted was really deleted; it was simply removed from the server storage. All emails that were deleted are kept safely on back-up copies that are preserved for disaster recovery and business continuity purposes. That means if Clinton had preserved her email on a government server even the "personal" emails that she deleted could be recovered. Her detractors know that and so does the Secretary. What Secretary Clinton has done is create a situation where her deleted emails cannot be accessed which is what is creating the firestorm.

If delete meant delete, what difference would it make that Clinton deleted the emails on a private server or a government server? The net result would be that the State Department would get the same set of undeleted emails. The issue for many Republicans and Clinton detractors is that they cannot take a peek at what was deleted, e.g., a list of the deleted emails, or simply recover every deleted email by looking at stored back-up information. Since Clinton had a private server, the information concerning what she has deleted is on the server in her possession not on the government server. Isn't that the point? Secretary Clinton was supposed to be able to secure private emails by deleting them.

Those screaming about what Clinton has done are really saying "we cannot see what she deleted." Then why delete it at all? Congress has the ability to make it illegal to use any email system for government business than one owned by the government. Further, Congress can make it illegal to delete any emails from a government server. Don't hold your breath because each member of Congress knows that there are snarky emails that they want to at least attempt to hide.

Many members of Congress including Orrin Hatch, Lindsey Graham, John McCain, as well as former President Bill Clinton, said they do not use email. While most of the press thought this amusing, I found it of grave concern. These are ham handed attempts to stymie the FOIA. What these elected officials are really saying is I have no electronic paper trail. Worse, it means that email communication is being done through an unlisted email account, under another name or a staffer's email is the defacto elected official's email. That means that FOIA requests focused upon an elected official's email communication will render nothing, as it did in some FOIA requests concerning Secretary Clinton's communication. We all know that someone is facilitating electronic email and text communication on behalf of Hatch, Lindsey and McCain, it would be impossible for them to do business otherwise. By not sending email through an account from their specific email address, these elected officials are attempting to avoid access to portions of their official electronic trail.

Hillary Clinton accomplished what all public officials want; protection of her privacy without breaking any laws or regulations. As a voter you can determine whether this is a political story or a real issue by how Congress acts to address the problem. I predict Congress will do nothing because each member understands the ramifications for their respective office; full transparency. If Congress wants to solve the email issue, change the email management regulations. Then they can get rid of the old regulation simply by pressing delete.