Why should anyone care that Hillary Clinton sent emails over her home server using a personal email account when she was Secretary of State, instead of using a government-sanctioned email account?

Mainly because there’s something called the Federal Records Act that clearly states federal agency heads (such as the Secretary of State) “shall…preserve records containing…documentation of the organization…policies, procedures, decisions and essential transactions of that agency and furnish information necessary to protect the financial and legal rights of the Government and those affected by the activities of that agency”.

According to most news outlets, Clinton’s personal email account contained over 62,000 emails that were sent and received during her tenure as Secretary of State. The State Department has been given more than 30,000 of those emails in printed form. However, 31, 380 of those 62,000 emails have been deleted because “they were private”.

Is This A Problem?

Clinton and fellow Democrats claim there is no problem with using a personal email account and service. It was simply more convenient for a busy Secretary of State to worry about using one device instead of lugging around a government phone and a personal phone. Clinton also insists she did not violate the Federal Records Act nor did she risk exposing classified or sensitive information while using her personal email account. In addition, Clinton has also taken “unprecedented” steps to provide the State Department with work emails for a complete review.

Legaltech News reports that Clinton’s method of searching for work-related emails was not only ineffective but questionable.  Searching for emails using a handful of key terms just to “cut corners” fosters doubts about the validity of this decision.

A source for Legaltech News states that keyword searches are typically “under-inclusive or over-inclusive”, meaning that keyword searches for emails lack the power to detect all emails imperative to the investigation. According to that source, finding just one sentence in any email that references government affairs makes that email a federal record. Instead of doing a keyword search, Clinton may have been smarter to have her emails searched manually.

The Importance of Information Governance

The question of who searched Clinton’s emails is another aspect of this legal technology case that will likely influence how the case is investigated by the State Department. For example, if a lawyer performed the search, will that establish attorney-client privilege? Did the person who searched her emails have official security clearance? Also, the legality of how “private” a private server is may prevent Congress from issuing a subpoena for access to Clinton’s private server, since the government does not “own” private servers.

Former Director of Litigation at the National Archives and Records Administration, Jason Baron, remarked that the Clinton email controversy aptly characterizes the importance of establishing vigorous information governance (IG) guidelines by any organization that relies heavily on email to send, and receive communications.

What are the expected results of the Clinton email saga? Many say it will eventually fade into obscurity, overshadowed by other news that doesn’t involve complex legal issues that seem to have no beginning and no end.