Hillary Clinton’s widely publicized misuse of private email for official correspondence should be used to spur reforms to deter such behavior among high-level government officials.
By using private rather than government email systems, Clinton and other high-level government officials seek enhanced control of public records concerning their job performance. This control prevents potentially embarrassing work emails from becoming public.
Such control can be attained by using a hosted email server such as Gmail or Outlook, or, as Clinton used, a home-based email server. Using a hosted email server is much more widespread because of its greater convenience and lower cost. But both types of server can be equally effective in selectively shielding work emails from public scrutiny.
Clinton’s “Emailgate” hasn’t spurred open government reforms because such reforms aren’t in either party’s interest. Incumbent officials from both parties have a shared interest in preserving email practices that give them control of their records. Asking officials to make potentially controversial emails public is like asking them to run naked before a jeering crowd.
However, only the Republicans are endorsing a double standard: one standard of email transparency for Clinton and another for other government officials. In contrast, the Democrats are merely endorsing the current “don’t ask; don’t tell” status quo.
However, framing the hypocrisy as merely a double standard is too generous because Clinton’s email practices have been relatively open—even if only reluctantly so and only as a result of great external pressure. Many other government officials do the same or worse. “Using a private server… is a terrible practice,” agrees Thomas Blanton, director of the National Security Archive at George Washington University. “The problem is that everybody does it.”
Congress is currently considering an email privacy bill with more than 300 cosponsors that would aggravate email abuses by government officials. Hindering law enforcement from investigating private email is generally desirable, but Congress should redefine private email to exclude public email masquerading as private email. Legislative and executive branch agencies shouldn’t require a warrant to see public email.
Congress should also embrace a new enforcement paradigm. Enforcement currently centers on the email sender rather than recipient. But the key to effective enforcement is to improve the recipient’s as well as the sender’s incentives.
For example, it was easy for Clinton to hide her private email account from the public during her four years as an executive branch official and for several years afterward as long as her dozens of trusted correspondents, who received at least 27,000 emails from within the U.S. State Department alone according to Clinton’s own estimates, had no incentive to let the cat out of the bag. Those correspondents should have been ethically and legally liable for receiving and replying to such emails over an extended period of time. They should also have been able to report the abuses to an independent enforcement agency with effective investigative powers and a credible commitment to protect their identities. If her correspondents had credible incentives to whistle blow, Clinton would have been deterred from the abuses that got her into trouble in the first place.
Much of law enforcement has always been based on motivating witnesses and co-conspirators to whistle blow, partly by providing them with some immunity for doing so. It is long past time when this principle should have been applied to curb the abuses of high level government officials using private email systems to shield their official work from public scrutiny.
Snider, a former American Political Science Association Congressional fellow in Communications and Public Policy, is the president of iSolon.org.
Source: Snider, J.H., Deterring government officials’ misuse of private email, The Hill, December 4, 2015.