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PROFS Case: Critique of E-mail Regulationswriting

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PROFS Case: Critique of E-mail Regulations

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Date: Wed, 28 Feb 1996 03:10:40 -0500 (EST) From: Eddie Becker Subject: PROFS Case: Critique of E-mail Regulations

Forwarded for your review are two critical essays (Bearman, Duranti), relevant to the debate over the latest National Archive's regulations on Federal Electronic Mail. Though it might be nice for me as one of the plaintiffs, in the PROFS Notes Case, to declare victory, It's not possible, just yet.. I fear that there are fundamental defects in the new regulations that can allow for serious abuse. The inability of Government officials to maintain records is a serious abuse of power. The PROFS Case began in the aftermath of the Iran Contra investigation in an attempt to assure that the wholesale deletion of electronic records by high ranking government officials could never happen again. It was to end with the National Archives establishing procedures for the preservation of permanent Federal e-mail. Unfortunately, the new regulations have accomplished neither. In fact, in the case of Iran Contra, as an example, the Regulations would have provided legal authorization to Oliver North to delete all his electronic communications. Rather than prevent the deletion of this critical material, the new Regulations do just the opposite. Secondly, the National Archive is standing still when it comes to assuring the preservation of permanent e-mail records. The National Archives has accessioned very few if any permanent e-mail records and it has turned down most modern office automation Federal Records. It refused to accession the electronic finding aids of the President's Commission to investigation radiation victims. There is little interest on the part of the National Archives to work to develop a standard for permanent e-mail. Little effort has been expended to encourage software vendors to development permanent e-mail records suitable for Archive accession. But it's not a problem that will go away. Eddie Becker ebecker@cni.org

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Begin text by David Bearman (from Archives and Museum Informatics, Vol. 9 #3, 1995) NARA ISSUES NEW RULES ON ELECTRONIC RECORDS In new rules dated August 14, 1995, US National Archivist John Carlin signaled a shift in Federal policy on electronic records that was adequate to convince the US District Court to consider NARA to be compliant with its orders under Armstrong vs. the Executive Office of the President. The rules, formally published in the Federal Register as 36 CFR Parts 1220, 1222, l228 and 1234, (http://gopher.nara.gov:70/0/managers/federal/emailreg.txt) apply to "management of Federal records created or received on electronic mail (e-mail) systems." They became effective 30 days after publication as a consequence of prior notice of rulemaking published March 24, 1994, for which NARA received 92 comments (approximately 1500 pages) that are summarized in the Federal Register notice. In my view, the new rules represent an improvement over the situation from the past several years in which NARA provided no guidance at all or proposed that agencies print records to paper. The weaknesses of the new regulations are three-fold. First, they persist in NARA's determination that one must distinguish between record and non-record e-mail and perpetuate the confusion that the contents of communications need to be judged to determine if they are records. Second, they fail to define recordkeeping Systems which is the critical new concept introduced into the picture, and the one upon which the ultimate value of the regulations rests. And third, they fail to suggest a framework for implementation that would allow agencies to retain records electronically (although they urge the benefits of electronic recordkeeping). Let me take these problems in sequence, because they each are crucial. One of the continuing problems that NARA has created for itself in thinking about electronic records is that it tries to distinguish up front between "record" and "non-record" material. Because there are no automated ways to do this, they find themselves in a serious quandary: either they have to permit the records creator to make this distinction or they (or some records manager, somewhere) need to review each record. The latter is too costly and the former results in a system that cannot satisfy the tenets of accountability because it allows records creators to make decisions about which transaction to document. Ostensibly the purpose is to eliminate redundant copies (even though each copy going to a different recipient is in fact a different transaction) and eliminate personal messages from official mail files. To solve this second problem it would be easier to warn people that their "private" e-mail will be retained for a period of time. If employees object, they shouldn't use government computers and networks for private purposes. This is the approach taken by most private industry and conforms to the guidance given Federal employees about the use of mail and the phone. If NARA resolved its self-made problem with record and non- record, the guidance to copy all electronic mail from electronic mail systems to "recordkeeping" systems would be reasonable protection for Federal records. Or it would be, if recordkeeping systems are what I think they are. But NARA has failed to define its terms meaningfully. The changes do add a new definition for recordkeeping system ("a manual or automated system in which records are collected, organized, and categorized to facilitate their preservation, retrieval, use, and disposition) but without any functional requirements that such a system must satisfy, this definition doesn't ensure that transferring records to a recordkeeping system is any better than leaving records in the information system that created them. Given that the entry for "Recordkeeping System" in NARA's latest Federal Records Management Glossary (1993) says "see filing system" and the definition given for filing system is "a set of policies and procedures for organizing and identifying files or documents to speed their retrieval, use and disposition," the confusion is not too surprising. In the NARA series of instructional guides for managing cartographic records (1989), audiovisual records (1990), electronic records (1990), and personal papers of Executive branch Officials (1992), there are no definitions of recordkeeping systems. When I wrote about "Recordkeeping Systems" in Archivaria (Autumn 1993' #36: p. 16-36), I documented that there was virtually no use of the term in the professional literature in the previous fifty years. Since then, in my work and that of the University of Pittsburgh electronic records project, I have consistently equated recordkeeping systems with systems that satisfy the functional requirements for recordkeeping as articulated in dozens of published and unpublished project reports. Of course, if this is what NARA means by recordkeeping systems, and we can depend on records to be transferred to systems that satisfy the functional requirements for evidence as articulated by the University of Pittsburgh project, I have absolutely no problem with this aspect of the new regulations. But what do they mean? And why aren't they explicit? Finally, NARA doesn't seem to have any idea of how agencies should go about making sure the records created by their information systems end up in recordkeeping systems. They haven't adopted the concept of "Business Acceptable Communications" or standards for how records should be transmitted so they can't provide an architecture-based solution that will satisfy agencies. Nor have they yet provided guidance about how to use existing products in ways that would contribute to trustworthy recordkeeping and ensure the retention of evidence. In the end, NARA produced a set of rules that satisfied Judge Richey that the government had, in fact, finally produced guidance, but these rules don't satisfy the larger purpose of ensuring better electronic recordkeeping by agencies nor will they, I fear, keep NARA out of court with future suits to protect government electronic mail from arbitrary destruction. Ultimately they fail NARA in a more important way: by not adopting a standard for electronic communication envelopes, NARA will have to inherit all the different recordkeeping systems of all the various government agencies decades from now when it will have no facilities for managing their hardware and software dependencies. RECORDS SCHEDULE 20: DISPOSITION OF ELECTRONIC RECORDS The National Archives also issued a new General Records Schedule (GRS) for electronic records on August 20. (http://gopher.nara.gov:70/0/managers/federal/grsfr.txt). The problems with the GRS are also fundamental: General Records Schedules are used to give blanket authority to dispose of certain categories of commonly created records by the activity that created them. In this case, the category electronic records (which applies here to lots of records which are on paper, or even microfilm, and aren't at all "electronic" except that they were generated by printers driven by computers) is not a category that relates to a business function of the government. As a consequence, the blanket authority to dispose of certain records sits quite uncomfortably. In addition, the records authorized for disposal by NARA are often precisely the kinds of records about the system which are required to document the authenticity and reliability of records being kept for archival evidence. Since NARA has defined the "contextual" and "structural" metadata requirements for records as being nothing more than "transmission data" (the examples used by Judge Richey in the PROFS case) they are not retaining the documentation necessary to give evidential value to what remains. For example, the GRS specifically identifies tests of systems performance, log-in files, passwords, audit trails, disclosure extracts, pre -migration files, indexes, and old documentation from prior states of the system as disposable, but all these kinds of structural metadata are crucial to the evidential reconstruction of records. NARA fails to distinguish between data in machine- readable formats and electronic records (e.g., it doesn't apply tests of evidential worthiness to their information). As a consequence, it has failed to take account of the fact that "data processing" systems have changed significantly in the past decade and that this kind of documentation is precisely the kind of metadata associated with business transactions at the record level. That is crucial for understanding the context of records creation and therefore of evidence. (Archives and Museum Informatics: Cultural Heritage Informatics Quarterly (ISSN 1042-1467) is published by Archives & Museum Informatics, 5501 Walnut Street, Suite 203, Pittsburgh, PA 15232-2311; (412) 683-9775; fax 412-683-7366. The journal is edited by David Bearman. Subscriptions are available on a calendar year basis at $90.00 for institutions, $50.00 for individuals (paid in advance, by personal check, and delivered to their home address), $25.00 for individuals employed with subscribing institutions (mailed to business address), with a surcharge of $10.00 outside the Western Hemisphere. Back issues are also available at a reduced price. All payments must be made in US currency. Credit cards are not accepted.)

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Though this is not directly a critique of the e-mail regulations, Luciana Duranti's observations are relevant and raise important issues regarding Federal accountability. Date: Fri, 9 Feb 1996 14:33:59 -0800 From: Duranti Luciana Subject: Re: Deaccessioning State Records From a discussion in On Fri, 9 Feb 1996, MONTGOMERY BRUCE P wrote: > After all, we're in the post custodial age. He can speak for > himself, but that seems to be his (Cox's) argument. The > opposing view is that this reasoning is somewhat unrealistic and > contrary to the missions and responsibilities of many archival > institutions and archivists. Thus, there's opposing interests at > play; (1) the interests of getting governments and organizations > to maintain their own records due to scarcity of space in > archival institutions, and > (2) the realities of the work place, the need to serve research > constituencies, and the demand to build institutional reputations. > These are not easily reconciled. Perhaps we should mention the most important interest at play, that of the people, who have the right to be certain that the records, once their reliability for the needs of the business at hand is not necessary to the creator anymore, are not going to be tampered with and "purified", will be treated with proper care (specifically in relation to copying and migrating processes), will be made equally accessible to everyone, and will be preserved in the most appropriate physical form. Some say: "We trust our civil servants." If we do, why are we trying to hold them accountable through their records? If we don't, why do we want to leave the primary means of keeping them accountable in their hands? Moreover, the suggestion or appearance of impropriety and the opportunity of committing it are as hurtful of the trust the people have in the records creators and thus in their records as the evidence of impropriety. This is why any doubt about the continuing reliability of the records should be removed by removing the records from those who have vested interest in either corrupting them or neglecting them. It seems to me that the most important function of any type of archivist, that of guaranteeing the authenticity overtime of records that are not needed anymore by the creator and therefore subject to lose their trustfulness is too often forgotten these days, and custody is renounced on the basis of a completely unfounded assumption that it is cheaper to keep the records with the creator than to move them to an archival institution or program. As to public records in particular, I maintain that even financially it is in the interest of the people that public records be transferred to archival institutions. Does' t the money needed by the departments to maintain their records come from the same wallets from which that needed by the archives come? If the archives is expected to control the "archival operations" of the creator, how is it going to do so other than by sending the archivists around to do a very analytical examination of the actions carried out on the records? Moreover, who is producing all the descriptive instruments for the users, standardized finding aids that draw the broad relationships of the records with those of other departments overtime? Are the users then expected to learn substantially different recordkeeping systems to have access to what they wish? Also, can you imagine all the duplication in the material preserved? The problems coming from this approach are never ending! I tend to believe that, with the post-custodialist trend, the public is ultimately the loser, that is, everyone. As to electronic records, the situation would even be worse. No series will ever be completely electronic, and this would favor a dichotomy of treatment of traditional records and electronic records. With technological obsolescence, migration will be necessary and this will open the door to any sort of abuse by the creator. Users will have to become proficient in every sort of system. I do not accept the argument that archivists will control the records from their room of the buttons, like in a spaceship. Electronic systems cannot be clotted with unnecessary records if they have to be used efficiently for everyday business, so non- current records will be out of the system on tapes or discs... Well, I could go on and on, but the point that I am trying to make is that what the post-custodialists suggest is an abdication of the primary archival role and, fundamentally, an illusion. Real control is not possible without possession and, if it were possible, would be far more expensive than possession. At times I think that what makes archivists propose the abandonment of physical custody is faintheartedness in front of the challenge of electronic records. Yes, the thought of what we have to do is sobering. And this means that we have lots to think about and to catch up to. So, let's begin right now! I apologize for having been so long, but the issue is so complex and the consequences of a choice in a sense or the other so pervasive, that I have only scratched the surface of what needs to be considered. Sweeping statements about what archivists should do (e.g. stop collecting, become a consultant...) should be avoided as they only raise emotions and do not offer any solutions. We have to come up with new methods, holding firm on to our archival principles. The only fix rule is that we must not alter the nature of the records, their innate characteristics, and their ability to serve as reliable sources for any kind of search. How we fulfill our responsibilities in the respect of such rule constitutes our methodology, and methodology is expected to change according to practical and societal circumstances. If archivists are warrantors of the trustfulness of the records as sources, besides being mediators and disseminators, then the custody of the records cannot be let go. Archives institutions and programs, public and private, large and small, are necessary to the protection of the network of democratic relationships and of its transparencies. They are not information hubs...I'll stop here! Luciana Duranti luciana@UNIXG.UBC.CA UBC MAS

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For another critique of the e-mail regulations go to the PROFS Case home page http://snyside.sunnyside.com/cpsr/government_info/info_access/PROFS_CASE/ see the file titled Problems_with_Nationa+ 09-Dec-94 09:44 30K The two Federal Regulation mentioned in this posting can be obtained from the National Archive gopher. http://gopher.nara.gov:70/0/managers/federal/emailreg.txt http://gopher.nara.gov:70/0/managers/federal/grsfr.txt If this posting had been forwarded to you by a friend and you wish to be kept up to date on the case, just drop me a line with your e-mail address. Put Join in the subject line send to ebecker@cni.org. End ```

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