Banning Cabinet Secretaries From Using Private Servers for Work Email and Data Storage (H.R. 3743)

What is H.R. 3743?

(Updated July 28, 2020)

This bill would prohibit the Secretary of a Cabinet-level executive department from maintaining a private email server to conduct official government business. The Inspector General of each department would be directed to ensure compliance with the prohibition.

Any Secretary who violates the rules would be subject to a fine and/or prison term, forfeit their office, and be disqualified from holding any U.S. government office.

For reference, there are 15 federal departments (plus the Vice President) in the Cabinet. There are seven other positions considered to be “Cabinet-rank” — even though they're not part of the formal Cabinet. These include the White House Chief of Staff, the UN Ambassador, and the Chair of the Council of Economic Advisers.

Argument in favor

Storing sensitive communications and data on a private server is practically asking for a foreign government or hacker to try and compromise it. Especially when the information belongs to a U.S. Cabinet Secretary, the use of private servers is too risky for national security.

Argument opposed

If Cabinet Secretaries have a legitimate reason for wanting to use a private server for official government business, they should be able to, if they can prove the server is secure. They can be trusted to preserve classified information from those trying to access it.

Impact

Senior government officials in the Cabinet, or who hold “Cabinet-rank” roles, hackers, national security, and Congress.

Cost of H.R. 3743

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Rep. Kevin Cramer (R-ND) introduced this bill to simultaneously protect sensitive communications by cabinet-level secretaries and preserve records that might be needed in subsequent investigations:

“Our nation’s electronic communications and records are under constant cyber-attack by terrorist organizations and more frequently by foreign governments. This legislation ensures no Department Secretary may use a private server for emails and storage of electronic data... The use of private email servers may inhibit the preservation of all records and electronic communications which may be needed for Congressional, civil or criminal investigations.”

A provision similar to this legislation was included in the omnibus appropriations bill, though it only prohibited funding for private email accounts or servers within the State Department.

Of Note: On several occasions since the early 2000s, senior cabinet-level officials have used private email accounts or servers to conduct official business. While serving as Secretary of State, Madeleine Albright, Colin Powell, and  Condoleeza Rice didn’t rely on government email accounts — though Albright and Rice rarely emailed, while Powell used the government system for secure emails. More recently, former EPA administrator Lisa Jackson and former health and human services secretary Kathleen Sebellius used either private or secondary government email accounts to conduct official business.

During her term as Secretary of State, Democratic presidential candidate Hillary Clinton used a private email server to store some of her official government emails. Several Freedom of Information Act requests and subpoenas related to Benghazi led to the discovery that months of emails were missing from the private server.

The Federal Bureau of Investigation (FBI) expanded its inquiry into the matter from assessing how classified materials were handled, to investigating whether national security secrets had been jeopardized and by whom. Specifically, the FBI is looking into whether Clinton staffers were directed to copy classified information from a secure system to be sent over a non-secure network to then-Secretary’s account. Clinton has claimed that she did not send or receive classified emails through that server, and when questioned about the use of her private email server in a town hall on CNN, she maintained that:

“I’m not willing to say it was an error in judgment because what — nothing that I did was wrong.  It was not — it was not in any way prohibited.”

Media:

• Sponsoring Rep. Kevin Cramer (R-ND) Press Release
• The Hill
• Huffington Post
• Say Anything Blog