US Department of Justice (DOJ) lawyers claim forensic copying of current and older workstations in the Executive Office of the President (EOP) would prove costly, labor intensive and futile as a method for preserving e-mail.
The EOP says such activity would impose “significant burdens,” given that allegations regarding lost White House e-mail and backup tapes have yet to be proven true.
The White House statement filed Friday was in response to a U.S. District Court for the District of Columbia order to show cause on why the EOP can’t preserve digital records during the ongoing investigation about White House e-mail archival and backup procedures.
The National Security Archive, along with left-leaning advocacy group Citizens for Responsibility and Ethics in Washington (CREW), requested a temporary restraining order (TRO) two weeks ago to stop any destruction or deletion of computing media within the EOP’s domain. There is currently a similar TRO regarding White House backup tapes.
The two groups initiated the lawsuit a year ago to retrieve what it contends are missing e-mails.
The White House Office of Administration had sought to dismiss the legal action, indicating missing e-mails may be recoverable.
The Archive, an independent non-governmental research institute at The George Washington University, is a repository of government records. Its $2.5 million annual budget is derived from publication revenues, contributions and grants from foundations such as the Carnegie Corporation of New York. It does not receive U.S. government funding.
The court, while denying the Archive’s TRO request and acknowledging forensic copying could prove burdensome, asked the EOP to stipulate specific costs in its current filing.
The EOP response did not include a cost affidavit, stating it would require the help of a third-party technology vendor. The EOP also told the court that if older workstations were still in use, finding and copying hard drives would create an “awfully expensive needle to justify searching a haystack.” The effort would require “hundreds of hours of work” and outweigh any “marginal utility” gained from creating and preserving copies, according to the EOP.
According to its general counsel, the Archive must respond to the EOP statement by end of business Tuesday.
“Striking that they [the EOP] failed to respond to the court’s specific questions, and even though they are engaged in a major project trying to find hundreds of days worth of e-mail, they still don’t acknowledge that they have a problem,” Meredith Fuchs, general counsel for the Archive, told InternetNews.com.
The EOP’s contention that older workstations aren’t available for forensic copying is “not credible,” added Fuchs.
In its response Friday the EOP also stated that it’s unlikely workstations used in the stipulated time period between 2003 and 2005 are still available. Yet the Archive is not convinced that’s true.
“The EOP claims it has no record of which computers were replaced and when. But how do they know they are not replacing the same ones each year if there is no record?” Fuchs said.
Federal laws require White House e-mail to be considered part of the nation’s historical record and preserved.
In earlier testimony, before a White House technical leaders have admitted in court depositions that potentially millions of e-mails from the past eight years have been erased.
Citing the current litigation, DOJ lawyers representing the EOP would not comment beyond its statement in its filing.
In addition to the legal action related to White House e-mails, CREW had asked the FBI to investigate whether White House officials obstructed justice by allegedly destroying documents related to the leak of CIA agent Valerie Plame Wilson’s identity.
An FBI spokesperson stated the agency had reviewed the letter and referred InternetNews.com to a DOJ spokesperson, Peter Carr, regarding status. Carr told InternetNews.com that the letter “is under review.”