USA to pursue co-creation of new national action plan on open government during Trump era

On May 29, senior officials from the White House Office of Management and Budget and the State Department confirmed that the United States will develop a new National Action Plan for Open Government for the Open Government Partnership this spring and summer, hosting two “co-creation” events in June and re-opening an online forum for public comments on Github. The State Department announced that the U.S. would be restarting the consultation process for building a new plan two weeks ago, at a separate event.

Today, in an email sent to the open government and civil society working group email listserv, GSA analyst Alycia Yozzi shared noted about the remarks delivered by the three officials, who were

  • Matt Lira, special assistant to the president for innovation policy and initiatives in the White House Office of American Innovation
  • Matt Bailey, acting policy unit chief, Office of the U.S. Chief Information Office, White House Office of Management and Budget
  • Chanan Weissman, special advisor in the Department of State

I’ve published the notes in full, below:

From: Alycia (Piazza) Yozzi
Date: Wed, May 30, 2018 at 5:20 PM
Subject: Save the Date & Notes from the 5/29 Inter-Agency Open Government Working Group Meeting
To: US Open Government <us-open-government@googlegroups.com>, OpenGov@listserv.gsa.gov

Hello OpenGov Community,

Yesterday morning, we convened the public U.S. inter-agency Open Government Working Group meeting with civil society in the offices of General Services Administration (GSA) and launched the process to develop and ultimately publish the Fourth Open Government Partnership (OGP) U.S. National Action Plan.

Thank you to those who joined us by phone and in-person. If you could not make it we’ve captured notes and I’m including them below.

SAVE THE DATE(s) – We will be hosting 2 Co-Creation Sessions to develop the 4th U.S. National Action Plan (NAP 4) and would love to have you join us. Space is limited so please register in advance. Passcode: OpenGov2018

You can register for either:

Thursday, June 14 from 9:00 am – 12:00pm

Thursday, June 21, from 1:00 pm – 4:00 pm

https://www.eventbrite.com/e/nap-4-working-session-registration-46585789350  Passcode:OpenGov2018

RESOURCES – Here are links to a few of the key resources mentioned at the meeting:

OpenGov Civil Society Meeting Minutes – 5/29/18

  • Matt Lira – Special Assistant in the White House Office of American Innovation
    • This Administration is committed to open government in the United States. Today we are here to renew the process of drafting and publishing the Fourth National Action Plan.
    • Empowering American citizens to hold their government accountable is a core function of any democracy and a priority for this Administration. A core objective is to ensure that our government is efficient, effective, and accountable to the American people.
    • We view this as a whole-of-team effort. The U.S. government will have a number of offices within the State Department, the GSA, and other agencies working on the fourth OGP National Action Plan.
    • We want to hear from you – citizen engagement and public participation is a critical part of this process. To help focus these discussions, the President’s Management Agenda will serve as a guiding document for our commitments. In particular, we will look forward to your input on the following areas of interest:
      • Modernizing Government Technology to Increase Productivity and Security
      • Leveraging Data as a Strategic Asset
      • Developing a Workforce for the 21st Century
    • Consistent with OGP’s feedback to all of its participants, we expect the fourth National Action Plan to include fewer – but more impactful – commitments relative to previous years.
  • Matt Bailey – Acting Policy Unit Chief, OFCIO, OMB
    • Highlighted that the OpenGov team really wants to get agencies and civil society together for the co-creation events, especially those that are able to make commitments for the new NAP.
    • We want to be able to have frank, open discussions with the public and the agencies that will be able to implement the recommendations.
    • Save the date for 6/14 and 6/21 for the co creation events. More information coming soon. [Note that 6/14 and 6/21 are now the confirmed dates.]
    • Cross-agency priority goals constitute the President’s Management Agenda (PMA) which, along with previous public input will serve as the starting point for this process
  • Chanan Weissman, Special Advisor, Department of State
    • Chanan provided a very brief overview of the soon-to-be released Independent Reporting Mechanism (IRM) Report on the Third U.S. National Action Plan and the status of the upcoming OGP Global Summit.
    • He thanked open gov representatives throughout the inter-agency for their feedback on the pre-publication version of the Report. Agencies provided 60 plus distinct comments, edits, clarifications, etc. back to OGP IRM researchers.
    • IRM cited three noteworthy highlights:
      • Modernization of access to information
      • Open science
      • Police open data
    • IRM Report’s five main recommendations included:
      • collaboration with the public,
      • fewer and more transformative commitments,
      • ethics reform,
      • service delivery and infrastructure, and
      • legislation branch involvement.
    • IRM Report information can be found online and out for release soon.
    • The OGP Global Summit in Tbilisi, Georgia on July 17-19. The last one was in Paris, France in December 2016. This year, they are streamlining the number of attendees (1000-1500 versus ~3,000 in years’ past) and limiting the number of panel discussion themes to three: anti-corruption, public service delivery, and civic participation.

Questions/Feedback

Q: There is a Google Group to share information and a Github account. Unfortunately, Github is not accessible to everyone. Can the group be sure to use the google group to share?

Yes. We will be sure to leverage the Google group to include the majority of people.

Q: Can you talk more about the OGP co-creation events?

We’d love to hear feedback on how to structure that process most effectively. We are still developing the structure but want it to be productive. Both events will be at GSA, one in the morning and one in the afternoon. We are considering ways to include folks who cannot be present in person

Regrettably, I could not attend nor participate in this public meeting due to illness, or I would have asked several questions.  Thanks to the GSA for taking these notes and circulating them online.

Whether the United States government actually follows through engaging the public almost a year later in an open process that involves that “collaboration of citizens, civil society, political and official champions and other stakeholders” is an open question that will be answered over the next month — but there’s ample reason to be skeptical, given political polarization, partisan rancor and low trust in government.

After historic regressions on open government, the Trump administration committed to continued participation in the partnership last fall, only to delay building a new plan after short, flawed public consultation.

Almost a decade ago, we saw what the Obama administration at least attempted to do with Change.gov and then the Open Government Initiative. Two government-hosted events in DC and a Github forum next month are not going to meet the more robust standards for public participation and co-creation that OGP has promulgated after years of weak consultations. The U.S. government can and must do better for this to be taken seriously by the public, press and politicians.

The Open Government Partnership was designed to be a platform that would give civil society an equal seat at the table. That means not just people voting on a pre-existing management agenda on a website or pre-populated commitments from closed workshops at agencies that require passwords to register, but getting commitments that are responsive to the great challenges that face American democracy into the plan, including ethics reforms.

In the Trump era, until we start seeing seeing federal agencies, Cabinet members, and the White House itself using social media, mobile devices, radio, and TV appearances to not only inform and engage the public but to incorporate public feedback into meaningful government reform proposals — including sitting down with journalists for interviews about the effort and its goals — unfortunately there’s little reason to trust that this newfound commitment to open government is serious.

Why I’m joining the Sunlight Foundation

I won’t bury the lede on this story: today is my first day at the Sunlight Foundation as a senior analyst. I’m enormously excited to be joining an organization that’s been at the heart of a global movement towards opening governments to the people they serve with technology, from open source to open data.

If you’ve followed my writing and interests over the past decade, you know that I’m passionate about open government in all of its forms. I’ve been humbled to meet thousands of people around the world who are deeply committed to public service and improving how government functions.

This is a natural fit. From improving public access to information to civic engagement to collaboration around code to participation in democratic governance processes, from regulations to legislation, the Sunlight Foundation has been at the cutting edge of making government more open, effective and accountable.

There’s also a personal reason I made this decision: Jake Brewer, a former Sunlighter and White House staffer who we lost far too early last year, frequently urged me to to make the most of my short time on Earth. This is the right place for me to be.

Long-time readers should expect me to continue writing and participating in this role, creating acts of advocacy journalism in the public interest.

I believe that people have a right to know what is being done in their name by their elected governments. Implicit in that view is the notion that representative democracy is the worst form of government, save for all the rest. It’s up to us to protect and improve the states that we have founded and fought to preserve.

As people who have been paying close attention to Sunlight know, it’s an organization in transition. I’m proud to join up with this open government “restartup”, pitching in where ever my talents are helpful. I believe 2016 is going to be a dynamic year at Sunlight, which is why I’ve thrown in my lot with the extraordinary folks on staff.

I hope that you will continue to send your thoughts, feedback, suggestions, tips and ideas my way in the days and months to come.

President Obama’s media critique is missing self-reflection

President Barack Obama​ commented on the state of journalism this week, speaking at the Toner Prize ceremony.

It’s a thoughtful analysis from a voracious, long-time consumer and, it seems, critic of the news that’s worth reading or watching if you’re interested in the role of a free press in a democracy.

As I said a few weeks ago, some may be more to blame than others for the current climate, but all of us are responsible for reversing it.

I say this not because of some vague notion of “political correctness,” which seems to be increasingly an excuse to just say offensive things or lie out loud. I say this not out of nostalgia, because politics in America has always been tough. Anybody who doubts that should take a look at what Adams and Jefferson and some of our other Founders said about each other. I say this because what we’re seeing right now does corrode our democracy and our society. And I’m not one who’s faint of heart. I come from Chicago. Harold Washington once explained that “politics ain’t beanbag.” It’s always been rough and tumble.

But when our elected officials and our political campaign become entirely untethered to reason and facts and analysis, when it doesn’t matter what’s true and what’s not, that makes it all but impossible for us to make good decisions on behalf of future generations. It threatens the values of respect and tolerance that we teach our children and that are the source of America’s strength. It frays the habits of the heart that underpin any civilized society — because how we operate is not just based on laws, it’s based on habits and customs and restraint and respect. It creates this vacuum where baseless assertions go unchallenged, and evidence is optional. And as we’re seeing, it allows hostility in one corner of our politics to infect our broader society. And that, in turn, tarnishes the American brand.

That said, the irony in President Obama asking journalists to hold power to account, pushing for answers and access, was not lost on the journalists he praised, including Alec MacGillis, the recipient of this year’s Toner Prize.

More than a few people have highlighted why the president is a flawed messenger for any critique of journalism, given his administration’s record on press freedom.

“Obama’s own track record shows that if anyone isn’t being held accountable for the promises he’s made, it’s Obama himself – at least when it comes to the deep-diving investigative journalism he professes to want more of,” writes Sara Morrison in the Guardian.

“On the one hand, it’s a good thing that the President has been more open to new media than any of his predecessors, using Twitter and Instagram and Facebook to connect directly with Americans,” writes Mathew Ingram in Fortune. “But journalists who have been frozen out by the Obama administration complain that this feel-good strategy also acts as an end-run around the traditional media, and this strategy has insulated the government from direct questioning.”

“What makes Obama’s speech so unstomachable is the way he praises reporters at an award ceremony by calling their work “indispensable,” “incredible,” “worth honoring” and essential to democracy while simultaneously blocking honest press queries with all the formidable energies of his office,” wrote Jack Shafer in Politico.

As readers of this blog know, these criticisms have merit.

From flawed compliance with the Freedom of Information Act to limiting access to scientists or photographers or using the Espionage Act to prosecute media or cracking down on whisteblowers, the Obama administration’s record on press freedom is deeply problematic.

I wish the President had shown more introspection about his tenure in office, particularly with respect to acknowledging not only failing to support making the Freedom of Information Act policy and reforms he proposed but the fact that agencies actively lobbied against them.

If President Obama had done so, and publicly laid out how he would work to address those failures and the unmet promise of his administration’s commitments to open government in his last year in office, perhaps his remarks would have been received differently by the journalists he praised and criticized.

Do nudges and civic apps help or hinder public policy reform?

sbst_2015_annual_report_final_9_14_15_pdf

The New York Times published a thoughtful exploration of societal probems, behavioral economics and government policy today. The intended big takeaway is clear enough: systemic issues, from poverty to retirement savings, need bigger policy intercessions than “nudges” to address the underlying issues.

To the extent that nudging distracts or delays broader change, the thinking goes, they may even be negative. You can tell that’s the intention because Eduardo Porter, the author, and the editor gives the “kicker quote” — the last word — to this expert:

“The single biggest contribution of behavioral economics to public policy is taking this flawed approach to retirement savings and making it a little bit more viable,” Mr. Loewenstein told me. “The downside is that if we make it just sufficiently viable, people won’t recognize how bankrupt the concept is.”

To his credit, Porter did acknowledge *why* the Obama administration has embraced applying behavioral economics in public policy — “Washington’s political paralysis.” In the face of a Republican-controlled Congress, the White House has had little reason to expect to enact any large social reforms since 2010, which means taking other approaches to improving social outcomes became more attractive. This is relevant to the Democratic presidential campaign as well, but that’s a subject for a separate piece.

As it happens, this is an argument that I’ve run into before, albeit in another context.

In 2013, voluble tech critic Evgeny Morozov made a similar observation about food stamp apps that help people keep benefits:

When I asked him why alerting the poor via a mobile device that their food stamps are expiring (versus a densely worded mailed printed document) is not an achievement, he responded that it “perpetuates a neoliberal regime where paperwork equals precarity equals a barrier to decent life.”

When I responded that, barring a political revolution, this system is the one the poor must negotiate, Morozov suggested that I take my pragmatic attitude somewhere else: a food stamp app is “a perfect example of tech that makes already ugly regimes more efficient.”

In my view, then and now, is that if “paperwork equals precocity,” improving the capacity of poor to access & retain benefits looks like a social good.

Morozov responded that “social goods come in different kinds, and that “the one you advocate is woefully unambitious.”

“Keep pretending that making ugly programs more efficient is apolitical or is in fact a social good,” he suggested.

Morozov asked if I had ever heard of a basic income, arriving at the significant social reform he presumably supports, providing the poor with an automatic benefit instead of one that they must register for and maintain. (The answer, then and now, was yes.)

It is extraordinarily unlikely, however, that the 114th Congress of United States of America will enact such a reform this year or next.

In that context, I’m not sure that food stamps — subsidies for families to buy food — are “ugly.” Removing a social program families depend on and letting our fellow citizens and their children go hungry to try galvanize political reforms would be ugly.

I do think that the way that they are currently delivered and administrated is ugly and must be improved. The software people must use to register for food stamps should be just as user-friendly as ordering a car through Uber.

I also think that applying behavioral economics to existing government programs makes sense, along with better designed digital services, as long as policy makers are transparent about how they are using nudges and disclose evidence to justify the defaults that they establish.

If you share Morozov’s view or have other arguments, please link and share them in the comments.

P.S. I think there was something of a strawman embedded in the Times article: Have President Barack Obama, Richard Thaler, Cass Sunstein or any other public official or researcher ever claimed that “nudges” alone would be enough to lift people out of poverty or develop additional income needed to save enough for retirement? I couldn’t find such an assertion. (If you do, please let us know.)

[FIGURE CREDIT: Re-enrollment rate changes for military service members after the introduction of a prompt, as detailed in the 2015 annual report of White House Social and Behavioral Sciences team]

REPORT: Limited White House Progress On Open Government Commitments

Civil_Society_Report_on_Implementation_of_the_Second_US_National_Action_Plan_-_NAP_2_Final_Evaluation_pdf
Today, OpenTheGovernment.org released a report of experts who evaluated how well the Obama administration has met its commitments to the Open Government Partnership in its second National Action Plan for Open Government. As you can see in the chart above, the researchers found only one commitment is fully met. Others, not so much.
What’s behind the hold up ? Here’s what the researchers suggested:
The possible explanations for why government agencies were unable to complete the initiatives varied across the evaluations. For example, the evaluation on the commitment to “Modernize the Freedom of  Information Act,” attributed the limited progress on this commitment to the lack of a strong mandate, absence of political will, and need for greater leadership. The evaluation of the commitment on transparency for legal entities noted “corporate opposition” as an apparent roadblock to that potentially transformative commitment. On the commitment to increase transparency of foreign intelligence surveillance activities, the lack of progress was discussed as possibly being a result of the complex challenges stemming from a deeply engrained culture of secrecy.
The lack of benchmarks and specific language is another commonly noted problem that emerges from this report. OGP guidance notes that governments should develop specific commitments and, where commitments have multiple sub-commitments, they should be broken into “clear, measurable milestones.” While the Civil Society Model Plan for the NAP 2 included detailed benchmarks and timelines for achieving measurable sub-commitments, these are generally not included in the U.S. NAPs.
Keep all of this in mind as The White House and federal agencies talk about new open government commitments.
I was asked to examine the administration’s progress meeting a commitment on the Freedom of Information Act — but failed to submit my own comments. As noted above, while the Obama administration made some progress on a new FOIA website, the Justice Department has so far failed to deliver better FOIA software — or, even better, an API for FOIA software vendors to build on. More problematically, the White House has been completely silent on Freedom of Information Act reform in Congress, despite language that mirrored the information policy that President Barack Obama and former U.S. Attorney General Eric Holder promulgated.
Those issues aside, the lack of progress on the potentially transformative commitments offers an opportunity for the Obama administration in its final year, as well as a set of idea that the presidential candidates could take up on the trail. Pushing even one of these through to completion by next January would be meaningful.
P.S. If you are a reporter covering the campaigns, please consider asking the candidates these  open government-related questions drafted by OpenTheGovernment.org and the American Society of News Editors (ASNE).
 
 
 

FOIA reform faces higher odds in 114th Congress

Federal financial regulators and the industry that they regulate are fretting over Freedom of Informatiom Act reform in Congress, per The Hill.

At least the concerns about sensitive info are being aired in public this time, albeit not on the record: the regulators aren’t commenting, and neither is industry. (It was their lobbying that scuttled FOIA reform become law last December, despite bills passing both houses of Congress unanimously.) 

Behind this story is a deeper one about how power and influence are used. The odds against strong FOIA reform being passed in the 114th Congress look longer today. 

White House hosts “Open Government Workshop” during Sunshine Week

Yesterday, the White House hosted an “Open Government Workshop” in Washington, DC, a portion of which was livestreamed at though whitehouse.gov. The workshop was the kickoff event for planning the third United States Open Government National Action Plan for the Open Government Partnership.

Archived video is embedded below, including remarks from Megan Smith, the U.S. chief technology officer, Gayle Smith, a special assistant to the President and senior director at the National Security Council, and Tom Malinowski, the assistant secretary of state for democracy, human rights and labor. T

Some of the participants in the workshop shared pictures of the event coupled with brief observations on Twitter, but little of substance regarding the participants or the outcomes of their discussions has been released to the public to date.

Editor’s Note: Where social media falls short of sunshine

Shinning a light today on public participation in government thru social media! #opengov

A photo posted by Laura Cohen (@lauraandotis) on Mar 17, 2015 at 2:13pm PDT

Ironically, given that the event took place during Sunshine Week, the open government workshop was not open to the public or the press. While a user of the White House open government Twitter account encouraged its followers to “share ideas” and “keep the dialogue going,” the choice to use the #SunshineWeek hashtag effectively meant that the backchannel for the event was swamped with news of the White House’s decision to officially remove a regulation that subjected its Office of Administration to the Freedom of Information Act, the news of which broke on Freedom of Information Day in the United States. The administration’s legal reasoning is based upon a 2009 federal court decision that ruled the office was not subject to FOIA. In the Federal Register notice of the final rule, the administration hold that “The Office of Administration, as an entity whose sole function is to advise and assist the President of the United States, is not an agency under the Freedom of Information Act or the Privacy Act of 1974, nor does its implementation of Executive Order 13526 affect members of the public.”

The White House indicated that they will “absolutely” share more info about the workshop in the future.

UPDATE: OpenTheGovernment.org is helping to coordinate the public-facing aspect of the civil society consultation. They’re asking the public to contribute to a model National Action Plan. You can learn more and, after reading the guidelines, submit your own commitment online.

UPDATE II: In a followup post, the White House shared a link to a collaborative online document where the notes from the workshop were posted online for comment.

UCS: Progress on public access to U.S. government scientists, but serious issues remain

A new report (PDF) from the Union of Concerned Scientists found some improvements on the freedom of government scientists to speak, including their use of social media, but that significant impediments to unimpeded access also remain. The report, which included the scorecard pictured below, was published during Sunshine Week, the annual celebration of the People’s right to know what government does on their behalf. According to the report:

“Progress has continued since the 2013 report, with a majority of agency policies now including key provisions such as the right to state personal views, whistleblower provisions, and a dispute resolution process. On the social media front, where five agencies in the 2013 analysis had no social media policy at all, that number in the 2015 report has shrunk to just one.

However, most agency policies still lack important provisions such as right of last review and access to drafts and revisions. And while nearly all the agencies now have social media policies, some of those policies are still vague or incomplete. Thus, there is still significant work to do.”

csd-transparency-ggt2015-scorecard-full

The accessibility of government scientists to journalists and the public has been a significant issue in the United States in recent years (and north of the border, in Canada), particularly in the context of climate science and other environmental issues. In September 2011, Columbia Journalism Review (CJR) published an extensive feature that found that, despite high hopes, President Barack Obama’s administration had failed to make science accessible. By 2013, there was some measurable progress in the relationship between the scientific agencies and the press, at least as measured by the 2013 version of the UCS report.

UCS made several recommendations to federal agencies improve further:

Federal agency media policies need to be stronger to offer scientists clear guidance and protections against political interference. More broadly, agencies need to put free and open communication ahead of political considerations.

  • Federal agencies should develop strong media and social media policies that grant scientists the fundamental right of scientific free speech.
  • The Office of Science and Technology Policy should assess agency progress and speak forcefully on the importance of strong and effective media and social media policies.
  • Congress should hold agency heads accountable for encouraging the free flow of scientific information to the public.
  • The president should make strong and effective agency policies on media and social media a priority.
  • Journalists should call out those agencies that block the free flow of information to the public.

The importance of media and public access to government scientists will only grow in the years ahead as more government data is released online. It’s crucial for the press and the public to be able to contact the people who create, maintain and understand these databases when they create acts of journalism based upon them.

What Hillary Clinton’s private email account tells us about secrecy, security and transparency

In 2009, a confirmed secretary of state enters the office on the first day and is offered a State Department email address. Why in the world would Hillary Clinton not use it, given the context of millions of emails gone missing from the previous administration?

Or, if she chose to intentionally follow the practice of former Secretary of State Colin Powell in using a personal email address for government business and registered clintonmail.com, would she not ensure that all email related to government business was forwarded and preserved? Using Occam’s Razor, it’s hard not to conclude that Secretary Clinton was intentionally not complying with the Federal Records Act, as the headline by New York Times suggests

It goes without saying that the Secretary of State of the United States conducts some of the most sensitive diplomatic communications imaginable, although one would presume that the most sensitive of those would not flow over email. Security is an issue. And it’s worth noting that Clinton’s use of a personal email account was known in 2013. What the public didn’t know that no state.gov email account was used, although presumably hdr22@clintonemail.com ended up in a few diplomats inboxes.

Window_and_Hillary_Clinton_Not_Alone_in_Using_Private_Emails_to_Govern_-_Tech_-_GovExec_comWhile the former Secretary of State may have the highest profile, Hillary Clinton is not alone among federal workers in using a private email account:

“A new survey of high-level agency executives from Government Executive Media Group’s research arm shows that the practice appears relatively common, even though it likely violates the 1950 Federal Records Act, as updated to reflect the digital age.

Thirty-three percent of 412 respondents to the mid-February online survey by the Government Business Council confirmed that personnel in their agency use personal email for government business at least sometimes, 15 percent said employees use it always or often and 48 percent said colleagues use it rarely or never.”

This isn’t a partisan issue, though it will be made into one in the days and, presumably, campaign ahead. It’s worth noting at this point the use of personal email accounts or mobile devices to avoid public records retention is an issue at all levels of government, in both major parties in the USA and beyond. Comments about other politicians doing this don’t excuse the practice.

At minimum, not ensuring that the email archived would seem to display a basic lack of respect for preserving the record of business done on the public’s behalf. At worst, it’s deliberate avoidance of discoverability of communications with foreign world leaders and private entities from Freedom of Information Act requests and Congressional investigations. Update: On Wednesday, the New York Times reported that using this personal email account led to thwarted public records requests, with an additional detail: the State Department had no access to Secretary Clinton’s emails. There is no question, in other words, that not preserving the emails on state.gov servers under the Federal Records Act led to less accountability.

Was it illegal? On the one hand, the presidential records law Congress passed and President Obama signed didn’t come into force until after Secretary Clinton left office. On the other,  Laura Diachenko, a spokesperson for the National Archives and Records Administration, told the New York Times that federal regulations have stated since 2009 that “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 record-keeping system.”

White House spokesman Josh Earnest also said that “when there are situations where personal email accounts are used, it is important for those records to be preserved consistent with the Federal Records Act.”

There’s at least five more questions that deserve answers.

All that said, I find it hard to fathom how her staff, the rest of the State Department, and White House officials did not raise red flags about the use of this email address or ask about how the messages were being preserved.

While there may be good reasons not to archive every email, call, note, txt, tweet, Whatsapp or Snapchat sent by a government official, I find it difficult not to argue that the primary email account used by a Secretary of State to conduct business should not be archived in its entirety for the historic record.

One solution to “transparency theater:” If the deliberations or diplomacy shared electronically or otherwise are sufficiently sensitive to raise concerns, let them be held for 5 or 10 or 20 or even 50 years before they are released in un-redacted form. Personal notes, jokes and mundane messages will also offer insight for the historic record.

On security

Putting adherence to public records laws and open government aside, the integrity of these communications bears scrutiny of its own. “The focus here really needs to be on the information-security piece,” said Chris Soghoian, principal technologist with the American Civil Liberties Union, told National Journal.

“It’s irresponsible to use a private email account when you are the head of an agency that is going to be targeted by foreign intelligence services.”

How safe were Clinton’s emails? The short answer is that we don’t know yet.

Update: The Associated Press reported on March 5 that clintonemail.com was hosted and run in Mrs. Clinton’s home in Chappaqua, New York. If so, choice would have positive and negative consequences for security:

Operating her own server would have afforded Clinton additional legal opportunities to block government or private subpoenas in criminal, administrative or civil cases because her lawyers could object in court before being forced to turn over any emails. And since the Secret Service was guarding Clinton’s home, an email server there would have been well protected from theft or a physical hacking.

But homemade email servers are generally not as reliable, secure from hackers or protected from fires or floods as those in commercial data centers. Those professional facilities provide monitoring for viruses or hacking attempts, regulated temperatures, off-site backups, generators in case of power outages, fire-suppression systems and redundant communications lines.

According to the AP, Clinton’s private email account was reconfigured in November 2012 to use Google’s servers as a backup, and then reconfigured again to use MX Logic until July 2013.

The New York Times repeated the same assertion in a followup story, reporting that “In earlier years, Mrs. Clinton’s account at clintonemail.com was connected to a server registered to the Clintons’ Chappaqua home in the name of Eric P. Hothem.”

Update: David Gewirtz, however, argued that Clinton probably did not have an email server in her basement. His hypothesis is that the AP and the New York Times somehow mistook the address in related to the clintoenmail.com domain registry for the physical location of the server and then reported it as a “homebrew” server.

Today, “Clinton is clearly using two cloud services for at least some of her email management: Google and MX Logic,” wrote Gewirtz. “A physical server associated with her MX records is being operated by a managed services firm. Therefore, the premise that she’s trying to lock down all her email, protected physically inside her own house so posterity can’t get to it, seems unlikely.”

As Gewirtz noted in a followup post on “EmailGate,” that would create a myth that “Clinton was running her private email account on equipment in her home in New York” which will live on, particularly as it is repeated in subsequent media accounts.

Update: While a statement subsequently released by Clinton’s office after a press conference regarding her email practices only confirmed that it was on her property, an anonymous source identified as a “Clinton ally” who was “familiar with her e-mail practices” confirmed to the Washington Post that she “used a server housed at her private home in Chappaqua, N.Y.”

The State Department told Vice Media that it has “no indication that [Clinton’s] emails were compromised,” and added that, in past interviews, Clinton “referenced an awareness of security protocols for her email use.”

“We have no indication that Secretary Clinton used her personal email account for anything but unclassified purposes,” a State Department representative told Jason Koebler. “While Secretary Clinton did not have a classified email system, she did have multiple other ways of communicating in a classified manner (assistants printing documents for her, secure phone calls, secure video conferences).

We don’t know that much about the security behind clintonemail.com, other than the apparent involvement of MX Logic, a managed email provider, or whether the former secretary of state used encryption.

Clay Johnson suggested that the private account may well have been more secure than the State Department’s system for unclassified email, which has been compromised for an unclear length of time.

According to a Stanford computer science researcher Jonathan Mayer, however, “this personal address couldn’t securely receive email,” and neither could a State Department address:

Why this stuff matters, however, isn’t hard to understand:

“If the personal communications of heads of state weren’t interesting, then governments wouldn’t monitor them,” said Soghoian. “This is the easiest thing for the intelligence services to target.”

Update: According to a security expert consulted by Bloomberg News, Clinton’s personal email system appeared to use a commercial encryption product from Fortinet, but “when examined it used a default encryption certificate instead of one purchased specifically for Clinton’s service.” it’s worth keeping that this examination is occurring now, not from 2009-2012, when she was Secretary of State.

It’s worth noting that Bloomberg Business erred on the headline regarding Hillary Clinton’s personal email system, although the details regarding encryption are interesting. Insecure email is by definition not private, certainly when you’re talking about the capabilities intelligence services of nation states.

Gawker also published the opinions of several IT security experts regarding the safety of Clinton’s email, based upon the current state of the systems.