A number of people I know refuse to vote for Hillary because they believe she mishandled classified information, and that the FBI was wrong in not prosecuting her. I’d like to convince them otherwise. So let’s do some reasoning, shall we?
We are talking about email here. What is a unique characteristic of email? It has a sender and a receiver. Suppose you are friends with Jared Fogle, the Subway guy. He decides to send you an email with one of his favorite pictures of children attached. It arrives in your server, unsolicited. Are you guilty of possession of child pornography? Even if you delete it when you receive it? It’s a serious question. I was once at a security conference where someone said one of the best attacks in the world is to go to a conference room computer, load child porn from a thumb drive onto that computer, and then delete it… and then report the person for possessing child porn. Look, he even knew he was guilty when he deleted it, right?
Wrong. The criminal is the person that loaded the illegal material, not the recipient.
The same rules apply with classified information. If someone emails you a classified document over an unclassified system, the person who is in big trouble is the person who originated that document (i.e., took content they knew was classified and entered it into an unclassified system) in the first place. The person who receives it is suppose to recognize and report it (although that doesn’t always happen), and their computer is appropriately cleaned (often with only a minor warning to them, because it wasn’t their fault).
Think about what you know about Hillary’s server. The messages that were found were sent to her; she didn’t originate them. At worst (and this is a supposition), she inadvertently forwarded them because they were not marked properly (plus who would send her classified info on a public computer).
But, you say, people have been prosecuted for having classified information on unclassified computers. Yup. But look at those cases closely: they put that information on those systems, often with the intent to exfiltrate it to an unauthorized party. In fact, espionage laws requires that intent to be present, and provably present. I have not seen any articles that demonstrated that Secretary Clinton took a document she knew was classified, put it on her email server, and sent it to someone else with the explicit intent to exfiltrate it. That is why the FBI did not prosecute her, even though there was classified information found.
But, you say, she sent messages with classified information. Other than possibly inadvertent forwarding, my understanding of those incidents is that the information was not classified at the time it was sent; it was classified sometime later. In these cases, what matters is the classification at the time it was sent. Subsequent classification does not expose anything because there is nothing that indicates the original message was confirmed as classified information. It has the same status of classified information published by Wikileaks in the New York Times — if you don’t know it is classified, it has no authority.
Again, there is no evidence (and remember: one is innocent until proven guilty) that Secretary Clinton took information from a marked, classified document, and then entered that information onto her server with the intent to exfiltrate it. That is the crime.
If your sole reason for voting against Hillary is that you believe she mishandled classified information, then I suggest you change your mind. Secretary Clinton — as demonstrated by her debate behavior — is some that always thinks before she speaks and is always prepared. She knows what is classified, and does not discuss it publicly (unlike Donald Trump, who has disclosed some of his intelligence briefings). She is cautious in how she words things and says things; again, a behavior we have not seen in Mr. Trump). Secretary Clinton cannot control what people send her, and whether they mark it correctly. Her only infraction here is not recognizing mis-marked information and reporting it (for she has already acknowledged the mistake of having the private server in the first place, and indicated she would not do it again… and at the time she did it, private servers were permitted for unclassified information).
ETA 10/25/16: My friend Rick Smith over at Cryptosmith has a great article on this subject. Reading it, another cybersecurity colleague, Dave Bell, wrote: “This is a nice exegesis of the laws and regulations surrounding classified information in general and classified email in particular. Lapses in following Department rules on disclosure are not ILLEGAL (in the sense of violating laws) unless the information is covered by the Espionage Act (circa WWI) or the Atomic Energy Act of 1946. The article points to a more detailed, lawyerly article.”
Lastly, you’ll say, she deleted all this email. That make her guilty of something, right? Nope. In America, absence of evidence does not imply guilt. The courts require that guilt be proven beyond a reasonable doubt, and there is a presumption of innocence. Just as Mr. Trump is not guilty of all the sexual assault claims until he has his day in court, and the actual evidence presented and a jury convinced, Secretary Clinton is innocent until there is actual evidence of a crime with a conviction. One cannot have the standards be different for some citizens.
So, let’s drop the whole canard about Hillary’s emails. It is up there in the meaningless category with the canard that she is responsible for her husband’s infidelities. Ah, but you say, if that’s a canard than Trump’s behavior is a canard. Potentially, you’re right. Nothing has been proven yet in court. He is only accused, and not proven guilty. He’s as pure as Bill Cosby. Yet words do demonstrate attitude, and he is on record for what he has said, and has not (a) apologized for the words, and (b) changed the behavior. Contrast this with Bill Clinton — there has been no evidence that his behavior has been repeated since the incidents in the 1990s.
