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Comment Re:Preservation rule question (Score 1) 371

The statute and regulations specifically made her responsible for assuring that the policies were implemented. This has nothing to do with the technician, IT or anything or anyone else.

Where did I get that copying and forwarding emails is specifically disallowed?

Previously quoted text from the document:

NARA regulations codified in 2009 also specified that agencies must not use an electronic mail system to store the recordkeeping copy of electronic mail messages identified as Federal records unless that system contains specific features.

The system used by State does not contain those features. Therefore, the use of an email system to store the records is specifically disallowed.

Secondly, the forwarding that is allowed is only in conjunction with forwarding to the official email account of the employee (not other employees) when the Capstone system is being used.

From the linked document:

In 2004, NARA issued a bulletin noting that officials and employees "must know how to ensure that records are incorporated into files or electronic recordkeeping systems, especially records that were generated electronically on personal computers."

There were three recordkeeping systems that were an option for emails. Copying and forwarding is not one of them. Therefore, copying and forwarding are specifically prohibited.

Here's more from the linked document:

Since 1995, the FAM has instructed employees, "until technology allowing archival capabilities for long-term electronic storage and retrieval of E-mail messages is available and installed," emails warranting preservation as records must be printed out and filed with related Department records.

In no case is it considered preservation of records to copy or forward an email to another employee of the Department.

From the document, again:

In 2009, IRM introduced SMART throughout the Department, enabling employees to preserve a record copy of emails through their Department email accounts without having to print and file them. However, the Office of the Secretary elected not to use SMART to preserve emails, in part because of concerns that the system would allow overly broad access to sensitive materials. As a result, printing and filing remained the only option by which emails could properly be preserved within the Office of the Secretary in full compliance with existing FAM guidance.

You seem to be hung up on how you would technically implement a search system to find emails rather than on what the National Archives under the Federal Recordkeeping act requires of all federal employees. Secretary Clinton was specifically charged with assuring compliance within the Department of State. Maybe her failure to assure compliance is the reason State is being ripped apart in the courts in their active FOIA lawsuits. The IG's report doesn't blame technicians or miscommunication between management and IT; it blames the Secretary and her staff for doing things they were prohibited from doing and failing to do things they were required to do under statute.

Comment Re:Preservation rule question (Score 1) 371

I'm not interested in general "judgement" issues in this particular thread, I want to know the exact policies that were alleged violated and see the policy text for it. I want to nerdal around in the details, in terms of policy text and technology.

I suggest reading the Inspector General's report, specifically, page 7.

At the Department, compliance with this regulation and preservation of emails that constitute Federal records can be accomplished in one of three ways: print and file; incorporation into the State Messaging and Archival Retrieval Toolset (SMART); or the use of the NARA-approved Capstone program for capturing the emails of designated senior officials.

Copying or forwarding an email to someone else in the State Department is not one of the choices under the regulations that have been in effect since 1995.

In, fact, later on that page:

NARA regulations codified in 2009 also specified that agencies must not use an electronic mail system to store the recordkeeping copy of electronic mail messages identified as Federal records unless that system contains specific features. However, according to the Department, its technology has "lagged behind" this mandate.

The regulation referenced here is 36 C.F.R. Section 1236.22 (2009) and states that for records to be stored in an electronic recordkeeping system, that system must have the following functions:

(1) Declare records
(2) Capture records
(3) Organize records
(4) Maintain records security
(5) Manage access and retrieval
(6) Preserve records

The report then goes on to say that agencies that allow employees to send and receive official electronic mail messages using a system not operated by the agency must ensure that Federal records sent or received on such systems are preserved in the appropriate agency recordkeeping system.

Further, the report states:

However, forwarding to or copying an employee's official email account alone is not sufficient to fully meet records management requirements unless an employee's email is being captured under the Capstone approach. If such an email qualifies as a record, employees are still responsible for preserving it in an appropriate agency recordkeeping system, such as through the use of SMART or printing and filing.

Bottom line:
- The employee is responsible for preserving records
- This isn't about making sure an email is kept on a system somewhere; the requirement is related to preservation of Federal records in a specific manner
- Copying and forwarding emails is specifically disallowed

Comment Re:Preservation rule question (Score 1) 371

It makes it a lot less searchable when sent outside the State Department.

How do you suppose a search will work for emails the Secretary sent outside the State Department?

The claim that copying people in the State Department on an email makes that email just as searchable as searching her email account is incredulous.

You are correct that personal emails are not covered by the archive rules. The issue is that she put her personal privacy above her statutory duties as Secretary.

Comment Re:Preservation rule question (Score 3, Informative) 371

Here's the National Archives transfer requirements, from 2002, for e-mail messages with attachments:

The practical issue is that an individual's emails must be archived in such a way that they can be organized and searched as a "body of records."

The example given for labeling a body of records is, "the e-mail records of the Deputy Secretary from the past fiscal year."

If someone want's to know what the Secretary of State said about a certain subject then they need to search the emails the secretary sent. The way Secretary Clinton performed cc/forwarding of emails then all emails of anyone to whom she sent an email would have to be searched.

It is the responsibility of the head of each Federal agency to make and preserve records including, "effective controls over the creation and over the maintenance and use of records in the conduct of current business." It's hard to see how failing to keep as a record the emails one sent and relying on the addressees to retain those records meets the standard the National Archives has set.

Secretary Clinton said she didn't want anyone to be able to search or examine her personal emails. The system she deployed made it so no one could search her official emails either.

Comment Re:Enormous tax and administrative burdens (Score 1) 347

The U.S. Supreme Court ruling in Quill Corp. v. North Dakota had nothing to do with the difficulty of computing sales taxes across multiple jurisdictions and everything to do with the Commerce Clause of the Constitution of the United States.

Some call the application of the Commerce Clause in this matter the "negative" or "dormant" Commerce Clause because it not only grants a specific power to the Congress but also prohibits certain actions by the states.

From the ruling in Quill:

...the Commerce Clause is more than an affirmative grant of power; it has a negative sweep as well. The clause, in Justice Stone's phrasing, "by its own force" prohibits certain state actions that interfere with interstate commerce."

One of those prohibited actions, according to Quill, is the forced collection of state sales taxes by sellers who have no nexus with the state.

This can be resolved rather simply; Congress can pass a law requiring the collection of those sales taxes.

It can also be resolved in a more complex manner; South Dakota can convince the U.S. Supreme Court to overturn or modify its earlier decision in Quill.

Regarding your comment on public services and the requirement of taxation: you're right, the internet doesn't change things. Long before the internet, most, if not all, states that have a sales tax also implemented a use tax that requires the purchasers of products where no sales tax was collected to pay an equivalent amount in a use tax. The taxes are already required under state law but, for the most part, the users of those public services are tax cheats who aren't paying their taxes.

What South Dakota's argument really comes down to is this: we know our citizens are cheating on their taxes and we want you, out of state business, to do our dirty work for us and enforce the collection of those taxes. Oh, by the way, we'll also be auditing your books to be sure you're doing the job properly so you better bone up on our laws and the laws of all other tax jurisdictions as it relates to collection and reporting of taxes.

Comment Re:So SCOTUS says anonymous software = illegal (Score 5, Insightful) 174

Here's the problem they want to solve:

If a device is thought to contain evidence and a judge is convinced to issue a warrant, which, admittedly isn't necessarily a high bar, then the only judge that can issue a warrant today is a judge with jurisdiction over whatever geographic area in which the device is located. If the location of the device is unknown then no judge can issue a warrant.

If the device is going to be physically seized then the location will, ultimately, need to be known.

However, if the device is going to be accessed remotely then the location doesn't need to be known but a warrant is still needed.

I do see a bigger problem if the device is located outside the jurisdiction of the United States. What is the issue of a U.S. judge issuing a warrant that gathers information from a device located in Germany; especially if access to that data violates German law?

So, what's the balance? If the location of the device is unknown does that mean that no judge may ever issue a warrant to gather information? Or, does hiding a device open the device to warrants from any jurisdiction?

Comment Re:So SCOTUS says anonymous software = illegal (Score 5, Insightful) 174

"search or seize an electronic device if the target is using anonymity software like Tor"

That might be what the article said but that's not what the Supreme Court said in its letter to Congress and the President.

The Supreme Court said:

(b) Venue for a Warrant Application. At the request of a federal law enforcement officer or an attorney for the government:
* * * * *
(6) a magistrate judge with authority in any district where activities related to a crime may have occurred has authority to issue a warrant to use remote access to search electronic storage media and to seize or copy electronically stored information located within or outside that district if:
(A) the district where the media or information is located has been concealed through technological means;

The change here is that a magistrate can now issue a warrant to remotely access or size electronic information outside their district if the location of that equipment is concealed. What's changed is that a magistrate can now issue a warrant for something outside their district rather than only for devices within their district; but only if the location of the device is concealed.

Submission + - U.S. Supreme Court Attempts To Untangle Patent Mess

tranquilidad writes: In Cuozzo Speed Technologies, LLC v. Lee, the U.S. Supreme Court is attempting to untangle the mess Congress created in its attempt to solve the issue of patent trolls. Congress created a new entity, the Patent Trial and Appeal Board (PTAB) as part of the US Patent and Trademark Office (PTO) to speed challenges to dubious patents and avoid lengthy court proceedings. The PTAB has decided to use a different standard, one similar to that which courts use, for judging prior art than the standard used by PTO. The result is a mess with one entity of the PTO issuing patents only to have another entity reject them.

SCOTUSblog covers the case with Ronald Mann highlighting the arguments from the justices and highlighting Breyer's take on congressional intent as, "BECAUSE Congress thinks you've (the PTO) done such a bad job of determining when to issue patents, we should DEFER to your judgment on how to fix the problem."

Comment Re:To quote Dylan... (Score 3, Insightful) 431

"de-regulation?"

Economically significant regulatory rules are those that, among other things, "Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities..." (Executive Order 12866)

Clinton issued a total of 361 economically significant rules and Bush issued 358. As of the end of January 2016, Obama had 393 with another 47 on the drawing board (Obama's Midnight).

Obama has been issuing 55 economically significant regulations per year of his administration. Clinton's and Bush's record aren't much better. Over-regulation is a more likely culprit or reduced productivity.

On your other points, I can't recall how unions have contributed to productivity nor how greed necessarily decreases productivity.

Comment Re:May spur automation (Score 1) 940

It's called cascading inflation. If you raise everyone's wages at the same time then you haven't increased the value of the unit of pay and haven't improved anyone's lives. On the other hand, you can't manipulate one part of the market, such as forcing an increase in one segment, without having an affect on another.

An employer needs to get a certain value from their employee. A minimum wage law essentially states that it is illegal to value the productivity of a given employee below a defined level.

Let's assume that a market values programmers at $100,000/year. Your employer needs 2 programmers and the market says the value of those programming positions is $200,000/year and that market value also represents the utility value to the employer. The employer will go and hire 2 programmers for a total of $200,000/year. Now the government decides to step in and say it's illegal to hire anyone for less than $200,000/year. The employer still needs 2 programmers but the market and utility value of those programmers doesn't justify $400,000/year. I'm guessing that the 2 programmers that are needed won't be hired. Perhaps the employer will hire 1 programmer and pay overtime to get their true cost closer to the utility value of the task. Perhaps they will go to a different market via outsourcing or automate the procedure. The incentive is for the employer to find another solution to their labor unit cost that allows them to stay competitive in the market.

Let's take that down to the minimum-wage hamburger flipper. The easiest way to eliminate that job is to do what some fast food chains have already done to improve food safety - pre-cook the burgers in a central factory and turn the three or four former hamburger flippers into 1 or 2 microwave button pushers.

You can't push one part of the market without expecting it to affect another area.

There's another reason it hurts the lowest-income people the hardest; it makes the lower-value jobs more attractive to the higher-value employees. Let's say that hamburger flipping carries a market value of $5/hour but minimum wage pushes the price in the market paid to $10/hour. There are $10/hour valued workers who perform more difficult or dangerous jobs for that $10/hour. If the employer is forced to hire someone for $10/hour why wouldn't they hire the $10/hour valued worker who provides more value per unit of cost. If the $10/hour worker can work an easier or safer job for the same pay then why wouldn't they take that job. What happens to the $5/hour valued employee?

Of course, you may argue that if the $5/hour worker is being paid $10/hour then that will cause the $10/hour valued employee to be paid $15/hour. I refer you to my first point that raising everyone's pay increases the value of no one's pay.

Comment Re:American people should have a voice (Score 1) 629

Here is the section from the Constitution:

"He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments."

It is the president that gets the "shall", not the Senate. The president shall nominate, and by and with the advice and consent of the Senate, shall appoint...judges of the Supreme Court.

The President "with the advice and consent of the Senate" shall appoint. The President needs the Senate's consent. The Senate has no obligation anywhere in that language to vote on anything. They have not given their consent. How the Senate withholds their consent is up to them and not holding a vote is withholding their consent.

The Congress is a co-equal arm of the government and is not subservient to the Presidency. From Article 1, Section 5, "Each House may determine the Rules of its Proceedings..."

It is up to the Senate to determine how it conducts its business.

Perhaps if the President had actually sought the advice of the Senate then we would have had a nominee that could have satisfied both.

It may not be polite, it may not be wise and it may not be to your liking but the Senate has withheld their consent. You misquote the document and then argue that your misquote is proof that the Senate must take a vote. No vote is required and I invite you to, correctly, quote any part of the Constitution that requires the Senate take a vote.

Comment Re: This negates the entire email scandal (Score 3, Informative) 229

The other Secretaries of State didn't need to release emails because the State Department already had them.

She was trying to escape FOIA requests and got caught with other crap as well. She was also skirting federal records keeping laws.

What other Secretary of State kept their own personal email server and then, only after being ordered to do so, decided which emails were actually government records that she should then return to the agency for which she was employed.

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