ERPA Workshop Antwerp -- April 15, 2004 1 All the President’s Email: Electronic Recordkeeping Policies and Practices in the Executive Office of the President

ERPA Workshop Antwerp -- April 15, 2004ERPA Workshop Antwerp -- April 15, 2004 11

All the President’s Email: All the President’s Email: Electronic Recordkeeping Electronic Recordkeeping Policies and Practices in the Policies and Practices in the Executive Office of the Executive Office of the PresidentPresident

Jason R. BaronJason R. Baron

Director of LitigationDirector of LitigationOffice of General CounselOffice of General Counsel

U.S. National Archives and U.S. National Archives and Records AdministrationRecords Administration


OVERVIEWOVERVIEW Litigation concerning the record status of Litigation concerning the record status of

email & rules on retention email & rules on retention – Armstrong v. Exec. Office of the PresidentArmstrong v. Exec. Office of the President

ERK at the White HouseERK at the White House Monitoring SchemesMonitoring Schemes Anomalies & AuditsAnomalies & Audits - General Accounting Office- General Accounting Office - Congressional- Congressional - Litigation- Litigation

Lessons LearnedLessons Learned


Email & The U.S. Email & The U.S. Federal GovernmentFederal Government Mid-1980s “early adopters” of email by Mid-1980s “early adopters” of email by

thethe

White House National Security Council White House National Security Council staffstaff

End of 1990s: 32 million White House End of 1990s: 32 million White House email messages preserved as records of email messages preserved as records of the William J. Clinton Administration the William J. Clinton Administration

2004: tens of billions email messages 2004: tens of billions email messages created each year by Federal government created each year by Federal government employeesemployees


THE PROFS DECADE THE PROFS DECADE BEGINS:BEGINS:ARMSTRONG v. EXECUTIVE ARMSTRONG v. EXECUTIVE OFFICE OF THE PRESIDENTOFFICE OF THE PRESIDENT

Filed: January 19, 1989Filed: January 19, 1989

The last day of the Reagan The last day of the Reagan AdministrationAdministration


THE THREE ARMSTRONG THE THREE ARMSTRONG INJUNCTIONSINJUNCTIONS The initial temporary restraining order The initial temporary restraining order

covered Reagan Admin. PROFS tapes covered Reagan Admin. PROFS tapes (1989)(1989)

The second temporary restraining order The second temporary restraining order covered Reagan and Bush era PROFS covered Reagan and Bush era PROFS and All-in-1 tapes and All-in-1 tapes (1992)(1992)

The district court’s permanent The district court’s permanent injunction covered all “electronic injunction covered all “electronic communications systems” and their communications systems” and their backups backups (1993)(1993)


THE ARMSTRONG THE ARMSTRONG ORDERORDER January 6, 1993 January 6, 1993

“ “ * * * ORDERED that Defendants * * * ORDERED that Defendants are enjoined from removing, are enjoined from removing, deleting, or altering information on deleting, or altering information on their electronic communications their electronic communications systems until such time as the systems until such time as the Archivist takes action pursuant Archivist takes action pursuant to . . . the Federal Records Act to to . . . the Federal Records Act to prevent the destruction of federal prevent the destruction of federal records, including those records records, including those records saved on backup tapes.”saved on backup tapes.”


Armstrong Backup Armstrong Backup TapesTapesRetained at NARARetained at NARA

0

2000

4000

6000

8000

10000

12000

14000

16000

1st TRO 2d TRO Jan 93 Inj.


ISSUES ADDRESSED IN ISSUES ADDRESSED IN ARMSTRONGARMSTRONG Email messages can be “federal Email messages can be “federal

records” under U.S. law - 44 USC records” under U.S. law - 44 USC 33013301

Agencies must manage the unique Agencies must manage the unique “electronic” email record, as it is only “electronic” email record, as it is only a “kissing cousin” of a hard-copy a “kissing cousin” of a hard-copy printoutprintout

Agencies must provide for some form Agencies must provide for some form of periodic audit/monitoring by of periodic audit/monitoring by records managers to ensure correct records managers to ensure correct application of guidanceapplication of guidance


ISSUES ADDRESSED IN ISSUES ADDRESSED IN ARMSTRONG (cont’d)ARMSTRONG (cont’d)“Who Knew What When”“Who Knew What When”

Transmission and receipt data Transmission and receipt data must be managed along with must be managed along with contentcontent– Names of senders, recipientsNames of senders, recipients– Distribution listsDistribution lists– User directoriesUser directories– Receipt data, including Receipt data, including

acknowledgements of receipt, where acknowledgements of receipt, where requestedrequested


An Aside: A Sea of An Aside: A Sea of MetadataMetadata

* Hidden email header information* Hidden email header information

* Proprietary features of word* Proprietary features of word

processing, e.g., summary fieldsprocessing, e.g., summary fields

* Hidden codes of all types* Hidden codes of all types

* Embedded data* Embedded data

* Ability to ‘undelete’ * Ability to ‘undelete’

* Tracking information* Tracking information

* Spreadsheet formulas* Spreadsheet formulas


How the EOP ImplementedHow the EOP ImplementedArmstrongArmstrong

Issued recordkeeping guidance covering Issued recordkeeping guidance covering applications on existing email systemsapplications on existing email systems

Customized existing proprietary software Customized existing proprietary software to perform electronic recordkeeping to perform electronic recordkeeping functions (ARMS)functions (ARMS)– Introduced front-end ‘prompts’Introduced front-end ‘prompts’– Built in automatic monitoring functionsBuilt in automatic monitoring functions

Restored and reconstructed email Restored and reconstructed email residing on backup tapesresiding on backup tapes


Auditing the End User By Auditing the End User By Way of Records Way of Records Management MonitoringManagement Monitoring

Monitoring program by EOP Monitoring program by EOP componentcomponent

based on statistical sampling based on statistical sampling

methodsmethods Record/nonrecord designationsRecord/nonrecord designations Policy Evolution Due to Audit Policy Evolution Due to Audit

function: default to “record”function: default to “record”


ARMS Anomalies & ARMS Anomalies & Audits Audits General Accounting Office General Accounting Office

Investigation into Email Investigation into Email AnomaliesAnomalies

Congressional Investigation into Congressional Investigation into Missing EmailMissing Email

Litigation: Spoliation, Sanctions, Litigation: Spoliation, Sanctions, and Beyondand Beyond


ARMS Anomalies, ARMS Anomalies, Cont’dCont’d MAIL2 server / Mail2 server MAIL2 server / Mail2 server Letter DLetter D MultiHost AnomalyMultiHost Anomaly VP emailVP email


Findings of the GAOFindings of the GAO ““Monitoring program did not Monitoring program did not

ensure effective management of ensure effective management of e-mail records”e-mail records”– Incomplete monitoring of presidential Incomplete monitoring of presidential

recordsrecords– Lack of controls over incoming e-mailLack of controls over incoming e-mail– Lack of documentation & testing of Lack of documentation & testing of

records management controlsrecords management controls– Management control weaknessesManagement control weaknesses


Additional Rounds of Additional Rounds of Oversight ActivityOversight Activity

4 days of Congressional hearings4 days of Congressional hearings

50+ days of evidentiary hearings 50+ days of evidentiary hearings in litigation brought by private in litigation brought by private party against the White Houseparty against the White House


Aftermath of AuditAftermath of Audit

Restoration project at $25 million Restoration project at $25 million expenseexpense

Thousands of backup tapes Thousands of backup tapes restored as part of “Calverton restored as part of “Calverton project”project”

Need for special memorandum of Need for special memorandum of understanding between White understanding between White House and Archivist covering House and Archivist covering post-Administration workpost-Administration work


Lessons LearnedLessons Learned

The need for QC checks and controls on The need for QC checks and controls on softwaresoftware

programs and processesprograms and processes

The need for clear communication channelsThe need for clear communication channels between IT staff, records managers,between IT staff, records managers, and the lawyersand the lawyers

Integrating lessons learned in next generation Integrating lessons learned in next generation ERKERK

system at the White House: building in auditsystem at the White House: building in audit functions and proceduresfunctions and procedures



For further reading:For further reading:Armstrong v. Executive Office of the PresidentArmstrong v. Executive Office of the President, 1 F.3d 1274 , 1 F.3d 1274 (D.C. Cir. 1993), available at (D.C. Cir. 1993), available at http://www.citizen.org/litigation/briefs/ERecords/articles.cfmhttp://www.citizen.org/litigation/briefs/ERecords/articles.cfm?ID=620?ID=620

Baron, Jason R., “The PROFS Decade: NARA, E-mail and the Baron, Jason R., “The PROFS Decade: NARA, E-mail and the Courts,“ in Courts,“ in Thirty Years of Electronic Thirty Years of Electronic Records, Bruce Records, Bruce Ambacher, ed. (Scarecrow Press 2003). Ambacher, ed. (Scarecrow Press 2003).

------------------, “Email Metadata In A Post-------------------, “Email Metadata In A Post-ArmstrongArmstrong World, World, 3rd IEEE Metadata Conference (1999), available at 3rd IEEE Metadata Conference (1999), available at http://www.computer.org/proceedings/ http://www.computer.org/proceedings/ meta/1999/papers/83 /jbaron.htmlmeta/1999/papers/83 /jbaron.html

“Clinton Administration’s Management of Executive Office “Clinton Administration’s Management of Executive Office of the President’s E-Mail System,” U.S. General Accounting of the President’s E-Mail System,” U.S. General Accounting Office Report,Office Report,GAO-01-446 (April 2001)GAO-01-446 (April 2001), , available at available at http://www.gao.gov/new.items/d01446.pdfhttp://www.gao.gov/new.items/d01446.pdf


Further Reading (Con’t)Further Reading (Con’t)

Memorandum of Understanding on the Clinton-Gore E-mail Records, Memorandum of Understanding on the Clinton-Gore E-mail Records, available at available at

http://www.archives.gov/presidential_libraries/presidential_recordhttp://www.archives.gov/presidential_libraries/presidential_records/s/

clinton_gore_email_records_memo.htmlclinton_gore_email_records_memo.html

““Missing White House E-mails: Mismanagement of Subpoenaed Missing White House E-mails: Mismanagement of Subpoenaed Records,” Hearings before the Committee on Government Records,” Hearings before the Committee on Government Reform,Reform,U.S. House of Representatives, 106U.S. House of Representatives, 106thth Cong, 2d Sess., Serial No. Cong, 2d Sess., Serial No. 106-179 (March 23, March 30, May 3, and May 4, 2000)106-179 (March 23, March 30, May 3, and May 4, 2000)

The Sedona Principles: Best Practices Recommendations & Principles The Sedona Principles: Best Practices Recommendations & Principles forfor

Addressing Electronic Document Production (Jan. 2004), available atAddressing Electronic Document Production (Jan. 2004), available at http://www.thesedonaconference.orghttp://www.thesedonaconference.org

The Sedona Guidelines: Best Practices for Managing Information and The Sedona Guidelines: Best Practices for Managing Information and Records in the Digital World (draft forthcoming 2004), atRecords in the Digital World (draft forthcoming 2004), athttp://www.thesedonaconference.orghttp://www.thesedonaconference.org


Jason R. BaronJason R. BaronDirector of Litigation, NARADirector of Litigation, NARA8601 Adelphi Rd, Suite 31108601 Adelphi Rd, Suite 3110College Park, MD 20740 USACollege Park, MD 20740 USAtelephone (301) 837-1499telephone (301) 837-1499email: [email protected]: [email protected]

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ERPA Workshop Antwerp -- April 15, 2004 1 All the President’s Email: Electronic Recordkeeping Policies and Practices in the Executive Office of the President