Reminder: Public Officials Using Private Email Servers Is Indefensible

Tuesday morning, FBI Director James Comey announced that the agency would recommend the United States not pursue criminal charges against presumptive Democratic presidential nominee Hillary Clinton for her use of a private email server during her time as Secretary of State.

The people who have spent the last year harping on Hillary's emails have been cast as being conspiracy theorists, Donald Trump shills, bogged down in minutia, and out of touch with reality; even Bernie Sanders famously said people are "sick and tired of hearing about [her] damn emails." But the truth is that Clinton's decision to use private email as Secretary of State was colossally negligent at best and is utterly indefensible.

Though Comey absolved Clinton of "intentional misconduct," and the ongoing worry that she'd be indicted or arrested before the November election, he noted that Clinton and her team "were extremely careless in their handling of very sensitive, highly classified information." If the Department of Justice were to prosecute the Democratic presidential nominee four months before the election, it would start a political shitstorm unlike any we've seen since Bill Clinton's impeachment proceedings. Comey and the FBI elected to move on, but noted "to be clear, this is not to suggest that in similar circumstances, a person who engaged in this activity would face no consequences."

Let's forget all of that for a minute, though, and use this as a reminder that there is no good reason for a public official to use private email to conduct official business.

It's dishonest

Save for a few exceptions (such as Congressional business), official government correspondence is subject to the Freedom of Information Act, a law that makes government information available for review by the public. It's one of the strongest transparency tools journalists and the public have at their disposal, and, by using a private email address, government workers may be hoping to keep their emails secret from the public.

This isn't a hypothetical or pedantic argument. Lots of politicians and government officials—from Mitt Romney and Howard Dean to large swaths of the Environmental Protection Agency—have used private email for official business, and many of them have used it to fight against transparency. Just last week, President Obama signed a FOIA reform law that makes it harder for the government to exempt certain kinds of information. If the government doesn't have control over the email account then we can't be sure the emails will ever be accessible via FOIA.

On that note, FOIA rules make it illegal for government employees to delete emails that are considered to be "government records" (these are most emails). In Clinton's case, well, I'll let Comey explain the sorry state of her record keeping.

Comey confirmed that Clinton's lawyers did delete emails that should have been subject to FOIA and noted that some of those emails were completely unrecoverable and will likely never be seen.

Clinton's decision to use private email continues the horrible precedent of politicians and government workers trying—and succeeding—to hide official business from the public. In Clinton's case, it's absolutely important when considering whether or not we want that sort of behavior from a president.

It's dangerous

Most of Clinton's critics have honed in on the fact that Clinton was sending and receiving classified information using her private email server. This isn't a surprise because it's a felony to mishandle classified information, and the FBI did indeed find that Clinton sent or received 110 emails containing classified information.

But the takeaway here shouldn't focus on what she was sending, it should focus on how she was sending and receiving emails and how she was storing them—the point being that no government employee should be doing any official business on an insecure email server, regardless of the content of those emails.

Simply put, Clinton's private email server was likely not as secure as a State Department email server would have been. The FBI "did not find direct evidence that Secretary Clinton's personal email domain, in its various configurations since 2009, was successfully hacked." However, Comey noted that in certain cases, it would have been trivially easy for a foreign government to hack or intercept her communications.

"Secretary Clinton's use of a personal email domain was both known by a large number of people and readily apparent," Comey said. "She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries."

The idea that it's bad for a public official to use his or her own email server or private email service to conduct government business is taught in whatever comes before Cybersecurity 101. It's such a well-known idea that Clinton herself sent an email in 2011 telling her employees that "online adversaries are targeting the personal Gmail accounts of US government employees" and advised government workers to "avoid conducting official department business from your personal email accounts."

The FBI confirmed that people Clinton corresponded with were the victims of state-sponsored hacking, and there have been numerous high-ranking government officials who have recently had their personal emails hacked, including CIA Director John Brennan.

Clinton's legal saga is over, but this issue is going to continue to dog her until at least the election. At the first Democratic debate, Sanders said that he'd prefer if the election focused on the "real issues." It's true that Clinton's email saga and security doesn't really concern any normal Americans. But her use of a private email server shows such a clear lack of judgment that it's insane this ever happened in the first place.