From Scientific American May 1992  p.20
 
 
 
                         Is it History or Just E-Mail?
 
     Computers can act in microseconds, but the law takes a little
longer. So the nonprofit National Security Archive in  Washington,
D.C., discovered when they filed suit in early 1989 to protect from 
destruction megabytes of data compiled by the Reagan White House
staff. A federal judge was expected to issue a ruling in April
ordering the current administration to provide an inventory and 
samples of backed-up data to the archive's lawyers, who contend
that the information must be protected under the Federal Records 
Act. At issue is whether electronic mail constitutes official
government records or whether it is simply digital doodling. 

     The  archive, a private group that helps make government
information dealing with national security available to scholars,
discovered on the eve of George Bush's inauguration that dozens of
computer backup tapes - among them ones containing memos from the
Iran-Contra fiasco - were about to be erased. Citing federal law
that prohibits the wholesale destruction of records, the archive
obtained a temporary order preserving the material. The fate of the
tapes has been in litigation ever since.

     If these memos and E-mail messages were on paper, explains
archive general counsel Sheryl Walter, there would be no  question
that most of them should be preserved. The White House, however,
has argued that the documents have no substantive value and fall
into the same "nonrecord" category as telephone message slips.

     In support of its position, the government cites a policy
statement, first committed to paper after the lawsuit was filed,
instructing officials that any electronic document attaining
"record" status should be printed out on paper and filed for
archiving. By implication, anything not printed would be considered
ephemeral.

     Michael Tankersley, a lawyer at Public Citizen, an advocacy
group involved in the case, argues that such a policy leaves
individuals with enormous latitude to deny their deliberations to
posterity simply by failing to print them out. Furthermore, he
points out, the National Security Council allocated only two
printers to more than 150 people.

     Although high-profile operatives such as Oliver North provide
the juiciest potential electronic tidbits, E-mail inhabits a
similar limbo at other federal agencies, Tankersley says. At the
Department of Energy, for example, the electronic version of
officials' personal calendars is considered a record, but E-mail
conversations are explicitly unofficial.

     Indeed, according to David Bearman of the University of
Pittsburgh, the problem goes far beyond the federal government. As
business is increasingly transacted by computer, the status of
digital documents waxes problematic. Some heavy users of E-mail
save everything they send or receive; others discard it all.
Managers everywhere, Bearman says, have yet to come to grips with
the issue. E-mail and other computerized data are "just out there,"
he comments. "Managers don't know how they're structured, how
they're managed or what happens after they use them."

     If Tankersley and Walter get their way, a judge might rule by
the end of the year that at least some White House E-mail merits
the same preservation as the administration's voluminous paper
files. In general, Bearman observes, the official or unofficial
status of electronic messages will have to be decided by "a larger
cultural consensus rather than a narrow legal ruling."        
                              
                                -Paul Wallich
 
 
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