Clinton’s Political Persecution May Begin

Image (1) hillaryclin.jpg for post 231761 The growing “scandal” surrounding Hillary Clinton’s use of personal email while serving as Secretary of State is positioned to become another high profile example of political persecution in America.

The use and public acceptance of the internet has advanced faster than the law involving it.  Prosecutors will argue that they need a test case so why not pick one with a high profile.  Unfortunately, all the public will see is the headline, “Hillary Clinton Under Federal Investigation.”  Sound familiar?

Of course Clinton isn’t the only public official who uses their personal email account for public business.  In New Jersey, courts have held that local elected officials who chose to do so make their private email account subject to OPRA.

Why Is Everybody Doing It?

As anyone who has been forced to rely on an outdated work email system can attest, resorting to a personal email account is often a necessity to remain productive. Free email providers rarely go down and messages can be easily accessed on a range of electronic devices. With government and corporate accounts, that is not always the case. And then there’s that whole thing about carrying around two phones.

The Bridgegate scandal revealed that many members of the Christie Administration use non-official email accounts. As many will recall, the “Time for some traffic problems in Fort Lee” message was sent from Bridget Kelly’s private email account.

On the federal level, Hillary Clinton is not alone. The Washington Post reports former Environmental Protection Agency administrator Lisa Jackson and former health and human services secretary Kathleen Sebelius both acknowledged using a secondary email account to conduct official business. In addition, current Secretary of State John Kerry is reportedly the first person in his position to rely solely on a government email account.

The Risks of Using Private Email Accounts

The fact that “everybody’s doing it” doesn’t mean it’s a good idea. Using a private email account creates serious cybersecurity risks and transparency concerns. With regard to security and data privacy, email messages sent via personal accounts can be more readily accessed by a variety of third parties, ranging from the email provider to cybercriminals to foreign government agents. Private emails are also stored on servers outside of the government agency’s control and may also be more susceptible to viruses or malware if users are not vigilant about updating their software.

Record preservation is also a real concern, particularly given that email sent by public workers are generally considered public records. As transparency advocates highlight, private emails may not be readily discoverable during private litigation or under public records laws, such as New Jersey’s Open Public Records Act. In addition, without clear policies in place, government officials generally have the authority to decide which emails must be made public.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Clinton’s Political Persecution May Begin