House moves to make destroying e-mails a quick way to delete that federal job of yours


Rep. Mark Meadows and Chairman Darrell Issa at a recent hearing held by the House Committee on Oversight and Government Reform.

The House Committee on Oversight and Government isn't exactly the model of congressional comity, as has been on display during the near endless series of hearings examining who, exactly, lost which e-mails at the IRS.

But the committee has managed to agree on something, and that's that as the work of government becomes more and more digital, the records-keeping practices applying to what happens online are generally dreadful.

Last week, the committee passed by voice vote a bill called the Federal Records Accountability Act of 2014, authored by Rep. Mark Meadows (R-N.C.)* and supported by a collection of his colleagues on both sides of the aisle. "It's a bipartisan acknowledgement that we have a big problem across agencies," said Meadows in an interview. It's also, perhaps, a bipartisan acknowledgement that, as Meadows puts it, "we have all these hearings and nothing comes of it." Chairman Darrell Issa (R-Calif.) might still be hunting for hard drives, but Meadows is urging a turn towards the future.

"Regardless of the specifics of who lost what and who didn't," he says, "what are we doing about this going forward?"

What Meadows's plan does is raise the stakes on data losses. Under the bill, agencies will be required to appoint a senior point person on electronic data attention. Federal agency employees will also be required to proactively make an official archiveable copy of any business-related message sent from a personal account -- be it e-mail, IM, or Google Glass mind beam. And whenever data is at risk of being lost or has already been sucked into a black hole, the agency must put up a notice on their Web site detailing the disappearance.

The big change, though, has to do with penalties: if the inspector general of an agency decides that one of his or her employees has "willfully and unlawfully" destroyed or hidden records, the head of the agency is required to suspend that employee. And if the charge is proven conclusively true, the employee shall be "removed" -- that is, employed by the United States government no longer.

Federal agencies aren't exactly shy about the fact that they've been befuddled when it comes to handling digital record keeping in particular and all record keeping more broadly. In 2010, the Government Accountability Office found that "records management has received low priority within the federal government." Indeed, some agencies at the time were employing the "print out and file" strategy as a means for archiving e-mails.

And in 2012, the National Archives conducted a "self-assessment" of federal agencies that found that 80 percent of them were, by their own admission, at moderate to high risk of losing records to poor data keeping practices. In many cases, employees were unclear about what they were supposed to be doing and, as is so often the case in the federal government, there was a communications gulf between IT staff that might have some insight into digital data management and senior leadership.

One underlying challenge? Reconciling the fact that while the federal government conducts much of its work through digital means these days, it still treats anything on paper as "real" and anything natively digital as ephemera until proven otherwise.

In the case of the IRS, for example, Commissioner John Koskinen has acknowledged that there are those in his agency who regularly rely upon OCS -- Microsoft Office Communications Server, a sort of instant messaging tool -- to conduct business. While Koskinen has resisted Issa's insistence that IRS staff are using OCS as a means of "talking over the transom" and thus avoiding record keeping requirements, the functional result is that those messages are lost to history.

And that sort of thing bothers Meadows on a level deeper than the mere administrative. The congressman, elected in 2012 and before that a real estate developer, says he enjoys heading to the Library of Congress and reading the papers of the Founding Fathers. And not just the big proclamations, but their daily scratchings. Meadows worries that that sort of material will be forsaken as we "go big into the digital age."

What do transparency advocates make of the Meadows plan? John Wonderlich is the policy director of the DC transparency group the Sunlight Foundation. He's generally a fan of proactive legislating on the openness front, even if it comes out of a political maelstrom: "Records management practices are terrible and oversight is also terrible."

That said, he says, lawmakers haven't developed a great deal of expertise in crafting solutions. "The legislation we have is either totally aspirational and vague or utterly reactive, and there really is no in-between."

When it comes to the Meadows bill, Wonderlich says he worries that it edges closer to the "utterly reactive" side of things, the functional equivalent of forcing travelers to take their shoes off at the airport because one time a guy had a bomb in his shoe.

And Wonderlich's also concerned that the plan focuses much on penalties and ad hoc redressings without doing much to improve the structure through which digital records are ideally kept. Meadows, for his part, says he appreciates the critique and points to amendments successfully offered by Ranking Member Elijah Cummings (D-Md.) and Reps. Jackie Speier (D-Calif.) and Jason Chaffetz (R-Utah), as well as Ron DeSantis (R-Fla.), which, he says, help operationalize the bill's expectations.

The bill now goes to the full House, part of a bid to create greater clarity around those instances when data is lost. Are they parts of malicious political plots? The result of IT-related leadership failures? Issa, for his part and to the frustration of many of his colleagues, insists that we're seeing again and again with the Obama administration evidence of the latter. Last week, he railed on "a convenient loss of far more data by far more people than is explained by the normal arithmetic probabilities."

But the fuzziness around digital data retention in policy and in practice in the federal government means that it can be difficult to know when we've slipped from sloppy to malicious.

"Agencies fail all the time and there are no consequences," says Sunlight's Wonderlich. "Destroying things or pretending that they broke remains a viable way of getting out of trouble, unfortunately."

*Correction: This post originally identified Rep. Mark Meadows as hailing from Florida. He is, in fact, the representative from the 11th District of North Carolina. 

Nancy Scola is a reporter who covers the intersections of technology and public policy, politics, and governance.

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