White House Ordered to Retain Backups in E-Mail Case

A federal court this week issued a temporary restraining order against the White House, preventing it from destroying backup tapes that may include copies of millions of deleted e-mails.

The order came about as the result of a lawsuit brought by the Center for Responsibility and Ethics in Washington (CREW) and a separate suit brought by the National Security Archive.

In the order, U.S. District Judge Henry Kennedy instructed the Executive Office of the President to preserve backups so that investigators could determine whether the White House had destroyed e-mails in violation of the Federal Records Act and Presidential Records Act.

“We don’t believe [what the White House is doing] is sufficient or adequate under what the National Archives guidelines state,” said Meredith Fuchs, general counsel of the National Security Archive, an independent research institute and library at George Washington University. “Even if it were, it’s simply not adequate to meet their legal obligations. So our lawsuit is trying to get them to restore the e-mails, and then institute an acceptable e-mail archiving system.”

White House and CREW representatives were unavailable for comment.

In a federal court ruling during the Clinton administration in 1993, a judge found that White House e-mails fell under the Federal Records Act, and thus needed to be retained and archived. In response to the court ruling, the administration installed an e-mail archiving system called the Automated Records Management System (ARMS) that automatically stored all correspondence.

In 2003, the Bush administration dismantled ARMS and never replaced it, abandoning the effort to replace it entirely in 2006. Instead, the White House exports all of its e-mails into “large, undifferentiated files on a file server,” according to a report from CREW. The files contain e-mails extracted from backup tapes.

“The data is basically inaccessible on these backups,” Fuchs said. “It’s certainly not accessible for ordinary [Freedom of Information Act] requests or other requests for information, because the effort required to restore that information from backups would be tremendous.”

In October 2005, the White House Office of the Administration found that between 2003 and 2005, hundreds of days’ worth of e-mail was missing — an estimated five million messages. The CREW report charges that the administration undertook no effort to recover the e-mails, nor implemented safeguards to prevent the alteration or deletion of e-mails in the archived messages.

Furthermore, the report said that backup tapes were generally recycled over a 60-day period, meaning that many of the original backups may have been destroyed.

“We don’t know what happened to e-mails or even backup tapes before the temporary restraining order was issued,” Fuchs said. “We feel there’s still many questions about what may have been preserved.”

While the White House and the Justice Department have said that the e-mails will be recovered, neither has given a definitive assurance that the tapes for that period were retained.

“Ordinarily, you’d expect that if you initiated litigation, that the defendant would put a hold on the destruction of the documents relevant to the litigation,” Fuchs said.

“The White House is a pretty important office of the federal government, and the Executive Office of the President serves important functions, so you’d think that they’d want to have a system that made it possible for them to maintain their records properly,” she added.

The news marks only the latest instance in which questions over e-mail retention policies have resulted in litigation or muddied ongoing cases. That’s been equally true in the private sector.

For instance, the ongoing antitrust suit pitting chipmaker AMD against larger rival Intel hit a snag when Intel admitted in March that it may have lost an unknown number of employees’ e-mails.

The need for sophisticated e-mail retention and so-called “e-discovery” tools for searching out stored, litigation-related data has been a major driver for enterprise software and storage vendors of late. Oracle, for example, earlier this month introduced an updated version of its Universal Records Management offering, designed to better help businesses retain and search through stored e-mails and other documents.

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