What is it with the government emailing system?

3/04/2015 08:09:00 AM
The media reports that Hilary Clinton exclusively used her personal email account for work, instead of her official government account, while serving as Secretary of State. This is not the only weird factoid involving the federal email system. Former HHS Secretary Kathleen Sebelius apparently used dozens of secret (but still government-administered) email addresses instead of the official publicly-listed email address. And investigations into IRS auditing strategies revealed that while IRS administrator Lois Learner did use her official email address, most of her archives were accidentally deleted.

I guess I'm not surprised that the government is having so much trouble maintaining a decent email system. Email, while extraordinarily useful, is something that we as a society just haven't figured out how to do well yet. With the web there is an acceptable and standardized set of protocols everyone uses (http or https) and a menu of browsers to implement them that are all essentially the same and do it well. With email, there is nothing resembling a standardized protocol, and every email client is different and maddeningly ineffective. C'est la vie.

It seems pretty stupid to me that Clinton would outright refuse to use her official email for anything. The media is reporting this as an attempt to circumvent transparency laws since it means congress and FOI requests must ask her to disclose work-related emails instead of simply taking them off a government server without her involvement (my understanding is that Congress can compel disclosure of personal emails just the same as emails from government accounts--the potential issue is about compliance, not legal authority). Yet while this does create very bad optics making it look like Clinton is trying to hide illicit dealings, it is also very bad for committing illicit dealings, because by not using her official account at all, authorities know they need to look at her personal emails for any information. If she really wanted to hide something, she should have used her official account for everything else so that no one would ask to see her personal account.

But while Clinton's email habits were stupid from a public relations (or, if you please, from a criminal's perspective), they do shed some light on American transparency laws. We have laws in place that not only mandate the permanent storage of all emails and communications within the government, but also the Freedom of Information Act (FOI) which makes it possible for anyone to sue and obtain those records for essentially any reason they want. Other laws have aimed to emulate this effect for things that aren't normally even recorded, such as official FOMC meetings. I contend that these laws are both wildly ineffective and overly invasive.

I can already hear readers asking: "if they aren't doing anything wrong, then why would government workers need to keep their emails secret?" Well, let me attempt a couple answers.

The example of FOMC meetings is informative. Beginning in 1994, new laws started requiring the FOMC to release transcripts of each meeting afterwords, with some delay. As Alan Greenspan has written about in his book Age of Turbulance, these laws have had a chilling effect on FOMC discussions. Because their statements could be publicized shortly afterwords and cause violent reactions in the stock market, FOMC members mince words, votes are orchestrated in advance, and statements during meetings are made overly optimistic while any real discussions of major risks to the economy are reserved to whispered voices in shadowy hallways outside the meeting rooms, off the official record. Rather than usher in a new era of democratic governance, ineffective and excessive transparency laws have moved us a step closer to Soviet-style bureaucracy.

But even if these laws didn't cause institutional dysfunction, the would remain an imposition on the privacy of public servants. People who have done nothing wrong can have plenty of things to hide from the public. I can't stress that enough. A citizen doesn't need a reason to want to keep personal information out of the hands of the public at large. The example that always comes to mind here is sexual orientation. Although we've seen much progress on gay rights in recent years, it is still the case that being openly gay means people face employment discrimination and harassment, and while wanting to restrict that information to people you trust is not the bravest decision, it is a valid one. Yet the fact is that even if you restrict use of your work email to strictly work-related functions, you can't avoid revealing personal information in them. Even the most casual comments from your boss or co-workers--"How was your vacation?"--cannot be honestly answered without revealing one's sexuality--"My husband and I had a great time in Gatlinburg." When we FOI the emails of government workers, we are requesting not just work related information, but also intimate details about their private lives. Imagine if Apple had been required to disclose all work emails in, say, 2005--there is little doubt in my mind that these would have rendered Tim Cook ineligible for the CEO position he holds today. The truth is that our private lives cannot be separated from our work lives, and that various prejudices in society mean innocent private details can be exploited for evil. Work emails are also, at least in part, private emails.

Some efforts, such as declassification of state secrets and independent auditing and review of agency decisions, do promote democratic transparency. But disclosure laws that target individual workers for public disclosure instead foster prejudice and inefficiency with very little potential to expose actual corruption.