The Washington Times misleadingly cited a government factsheet to claim that a “U.S. policy” could authorize the confiscation of Hillary Clinton's personal email server. In fact, the authority to which the Times refers explicitly notes that its “advisories are NOT binding upon U.S. Government departments and agencies.”
On July 1, the Times published an article headlined “Admission Of Hillary's Classified Emails Opens Door For Feds To Seize Her Servers.” The report suggested that because some information on Clinton's State Department emails has now been retroactively classified, the NSA could seize the private server on which she stored the emails in order to “destroy” it.
The emails in question are part of a collection of the former Secretary of State's official business correspondence, which was conducted on a non-government email account, and which the State Department is currently reviewing and releasing to the public. According to the Times, the classification of “two dozen” of her thousands of emails could “trigger a U.S. policy that authorizes the government to take control of her private server and sanitize the contents” :
The State Department on Wednesday conceded that two dozen of Hillary Clinton's emails did contain classified information, a fact that could trigger a U.S. policy that authorizes the government to take control of her private server and sanitize the contents.
A former senior intelligence official told The Washington Times the policy also requires the government to check other Internet paths her secret information could have taken.
The procedures are spelled out by the National Security Agency's special panel on controlling leaked secrets, called the Committee on National Security Systems. It published a policy, “Securing Data and Handling Spillage Events,” that fits Mrs. Clinton's unauthorized private server kept at her home while she was secretary of state, according to the retired officer's reading of the regulations.
But the source responsible for information systems that contain classified information that the Times cites -- The Committee On National Security Systems (CNSS) -- states that although federal officials “are responsible for ensuring that CNSS policies and directives are implemented within their departments or agencies,” its advisories “are NOT binding upon U.S. Government departments and agencies.” The specific NSA pamphlet the Times also refers to -- "Securing Data and Handling Spillage Events" -- is a best practices “factsheet” for information assurance professionals, not federal “regulations,” as the Times erroneously reported.
Furthermore, the Times itself admits at the end of the article that these emails may not, in fact, have been classified at the time they were contained on Clinton's personal server, according to the State Department, making it less likely these best practices would even apply. As Politico reported:
“Portions of 25 emails were subsequently upgraded” to classified, State spokesman Alex Gerlach said late Tuesday. “It is routine to upgrade information to classified status during the FOIA process. ... The information that has been classified today through our FOIA review was sent in 2009. The occurrence of a subsequent upgrade does not in itself mean that anyone did something wrong or violated the law when they sent or received this information.”
Responding to similar questions about Clinton's emails back in May, State Department Deputy Spokesperson Marie Harf explained why the emails' classification status was routinely reviewed:
First, it's possible that the degree of sensitivity of certain information could have evolved over time due to changing world events or national security interests. It's also possible the details of our cooperation with other countries would be upgraded if their public disclosure could negatively impact U.S. foreign relations, and it's possible that a candid exchange of views among officials, if publicly released, could have a negative impact on foreign relations. Those are general. I'm not referring specifically to this sentence and a half that was upgraded today. But there are a variety of reasons in the regular FOIA process that this can happen.
USA Today reported in March that Clinton's private server has already been wiped clean.