White House Admits Recycling Tapes, Hedges on Missing E-Mail

There are conflicting reports coming out of Washington surrounding missing White House e-mails as well as conflicting statements coming from the White House press room. A hearing has been scheduled by Democratic Calif. Rep. Henry Waxman to investigate comments from White House spokesperson Tony Fratto asserting that he had no reason to believe any e-mails are missing.

Meanwhile, a White House chart that was used behind closed doors reportedly showed that e-mail for some executive offices of the President was not archived on 473 days.

The public learned of the chart when it was noted in a White House declaration filed Tuesday in response to lawsuits started by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive, an independent, non-government research organization. In this case, Magistrate Judge John Facciola issued an order earlier this month that required the White House to answer four questions concerning back-up copies of the millions of e-mails apparently missing from White House servers.

In addition, the court-ordered declaration revealed that the White House routinely recycled its backup tapes of e-mail before October 2003, which means that e-mails between White House officials surrounding possible discussions about leaking a CIA officer’s identity to reporters may be forever erased.

Digging In

CREW believes upwards of 10 million e-mail messages may have been lost altogether, and noted that the deletion of e-mail means that there were no backup copies of e-mails deleted between March 2003 and October 2003. “The significance of this time period cannot be overstated: The U.S. went to war with Iraq, top White House officials leaked the covert identity of Valerie Plame Wilson and the Justice Department opened a criminal investigation into their actions,” CREW noted in a statement on its Web site.

“With this new filing, the White House has admitted that although it has long known about the missing e-mails, it did nothing to recover them or discover how and why they went missing in the first place,” noted Anne Weismann, chief counsel to CREW. “The missing e-mails are important historical records that belong not to the Bush administration, but to the American people. As a result, the public deserves a full accounting, and hopefully, now that the matter is before a federal court, we will get one.”

Ducks in a Row

In a White House press briefing by Fratto on Thursday, he engaged the topic, which was raised by a reporter in the room. “We have absolutely no reason to believe that any e-mails are missing; there’s no evidence of that,” Fratto said.

Here’s a transcript of the portion of the press conference: (“Q” represents a question from a press room reporter; “Mr. Fratto” is Fratto’s response.)

Q: Tony, on the subject, could you address the missing White House e-mails and the lawsuit? It is a subject of reports this morning. Are there in fact the e-mails missing? What’s the likelihood of their recovery versus the —

Mr. Fratto: I think our review of this, and you saw the court filing on this, and our declaration in response to the judge’s questions — I think to the best of what all the analysis we’ve been able to do, we have absolutely no reason to believe that any e-mails are missing; there’s no evidence of that. There’s no — we tried to reconstruct some of the work that went into a chart that was entered into court records and could not replicate that or could not authenticate the correctness of the data in that chart. And from everything that we can tell, our analysis of our backup systems, we have no reason to believe that any e-mail at all are missing.

Q: So where are they?

Mr. Fratto: Where are what?

Q: Where are part of —

Mr. Fratto: Which e-mail? Look, no one will tell you categorically about any system — any system, whether it’s your system at Bloomberg or our system here at the White House, past and present, categorically that data cannot be missing. All of our review of it and all of the our understanding of the way that the backup system works, it’s a backup system that captures existing data, it captures things that are stored and archived. We have no reason to believe that there’s any data missing at all — and we’ve certainly found no evidence of any data missing.

Q: So that would mean that if you were asked, you would be in a position to comply with a request to produce those documents?

Mr. Fratto: Yes, which documents? I mean, if someone has a specific request for documents and they would like us to search for particular e-mails, of course we could search for e-mails — and we have. And we have been responsive to requests in the past.

Q: And they have been produced? They do exist?

Mr. Fratto: We have produced e-mails upon request, either for our own internal review or sometimes in response to investigations that have taken place on the Hill. I mean, we have been able to go back and find e-mail. The question is, have we been able to find a large mass of missing e-mail? No, we have not located somewhere in the system the absence of something. We have not been able to note the absence of anything in our databases.

Q: You’re saying they’re there, you just haven’t located them yet?

Mr. Fratto: No, I’m saying we have no evidence that shows that anything at all is missing. And you’re saying, well, have you found the missing e-mails — and we say we have no evidence that anything is missing.

Q: So you’re saying that would include e-mails that were erased from the Republican National Committee system that was used by some White House officials?

Mr. Fratto: I can’t speak to the RNC’s system of archiving and storing e-mail. All I can tell you is that the e-mail on the White House computers, we have no reason to believe that any e-mail or other data are missing. (Calling on another reporter) Olivier.

Q: Yes, I want to follow up on that, I’ve taken a real sky view of this particular story, but — so it was wrong to say a few months ago that there were possibly millions of e-mails missing?

Mr. Fratto: I think those charges came from outside the White House. I think that’s the charge of one of the —

Q: One of your colleagues addressed those from the podium and suggested that that was accurate — again, I’m taking —

Mr. Fratto: I’m not sure what was said on that. I can tell you today, though, that we have no evidence and we have no way of showing that any e-mail at all are missing.

From a Technology Perspective

Political rumblings aside, what might be going on from a technology perspective? Would an IT professional simply stop an existing backup process? That may be what happened here, though the White House has offered no explanation as to why it would stop a backup and archival process that President Clinton implemented in March of 2000 after it was discovered that e-mail from then Vice President Al Gore’s office wasn’t being preserved.

“The only circumstance I can imagine where a tech pro might overwrite or recycle a back-up tape would be after the information had been certified as being archived permanently offsite by an organization like Iron Mountain,” Charles King, principal analyst for Pund-IT, told the E-Commerce Times.

“It wouldn’t be worth that tech pro’s job to embrace such an idiotic procedure, and it would be hard to count all the internal governance rules and government compliance regulations it would break. Beyond the big issues, the White House’s explanation also stumbles over a small one, since one of the biggest benefits of tape is its low price — why would a tech overwrite a cartridge in the first place?” King added. “It would be like ‘recycling’ a CD. A consumer might do it in a pinch but it makes no sense for professionals entrusted with historically important and potentially sensitive information to do so.”

Still, It Happens

Michele Lange, director of legal technologies for Kroll Ontrack, a technology consulting company that provides electronic and document discovery and computer forensic services, said that all too often a low-level technology professional makes process changes that contradict document retention policies.

“Often you’ll have this great policy and your legal department thinks they’re all 100 percent in compliance, but really what’s going on in the back office IT area is they stopped for some reason, and that happens all the time,” Lange told the E-Commerce Times.

“I can’t tell you the number of depositions I’ve sat in on where the CIO gets on the stand — or is deposed — and says, ‘This is our policy and this is what we’re doing … and then you put the low-level IT guy on the stand who says, ‘Oh, well we stopped that six months ago because that machine broke down and we didn’t have budget money, so we did this, and we thought that wouldn’t be a problem,'” she explained.

“In the White House situation, the question that is interesting is, ‘Did they stop preserving the documents because of a technical reason or was this more purposeful because they were trying to cover up something?'” Lange said. “And that happens, too, where there are purposeful acts to destroy data, and those come to light usually in the course of a large litigation. And judges have no tolerance for that — especially in this White House case. This judge is John Facciola, and he’s one of the most active judges on the topics of e-discovery. They aren’t going to pull the wool over this judge’s eyes … he’s written 10 to 15 prominent e-discovery opinions.”

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