Experts agree that Hillary Clinton is in a league of her own when it comes to finding modern ways to raise complications under old laws, and it has inspired some to wonder whether a "Clinton revision" is in order to ensure that federal record rules reflect developments in modern technology.
"I have never observed someone who truly set up a system with the sole intent of circumventing the Federal Records Act," Kansas Republican Rep. Mike Pompeo, who sits on the House Intelligence Committee, told the Washington Examiner.
"I know of no other circumstance where a senior American leader set up a system which had as its intent to keep information out of the hands of folks who were trying to see a transparent American government."
Since 2013, several high profile individuals have faced consequences for violating the Espionage Act and the Federal Records Act, passed respectively in 1917 and 1950. In spite of the laws' age, Clinton's practice of using a private server to handle classified information is likely the first time that either law could have been violated exclusively through technology that did not exist when either law was written.
From Clinton's perspective, the most concerning of the two is the older Espionage Act, which prohibits the exposure of secrets related to "national defense." Leakers who notoriously violated the law include former NSA contractor Edward Snowden, who published secrets about classified intelligence programs, and retired Gen. David Petraeus, who shared classified information with his mistress and with reporters.
Should Clinton join their company in facing criminal charges, she could be the first to offer in defense that she was the one who was victimized by modern technology. Some believe there could be legitimacy to that point.
"The Espionage Act has been used to bring prosecutions that are well beyond what was envisioned when the statute was passed," said Barry Pollack, an attorney who defended convicted CIA leaker Jeffrey Sterling. "It was passed in World War I to prevent espionage on behalf of foreign powers. That is a far cry from someone leaking classified information to the New York Times.
"I do not believe the Department of Justice should be using the Espionage Act to pursue such cases," Pollack said. He added that as a similar principle, virtually exposing information to hackers should not be a prosecutable offense. "It is rare, if ever, that a person should be criminally prosecuted for inadvertent behavior. The criminal law is intended to prevent intentional wrongdoing."
Others said it was already unusual to see criminal charges result from "inadvertent" behavior. "It is rare for people to be prosecuted for unintentional mishandling of classified information," said Bradley Moss, an attorney who specializes in national security law. "It is far more common that they simply be administratively disciplined, whether through a security clearance revocation or employment termination."
However, Moss added, Clinton is a trailblazer. "Most federal employees and government contractors don't bother using private email for work purposes ... They often will complain privately about how the U.S. government email servers crash or are slow, but they use their work email all the same. Using a private email account exclusively is something I have never seen any rank-and-file person do."
Others argue that regardless of the technology involved, Clinton effectively intended to violate the law. "I would argue that it was not 'inadvertently exposing' information," said Matthew Whitaker, a U.S. attorney appointed under the President George W. Bush.
"Regardless of whether the law was passed before email became prevalent, the State Department implemented a system with its own email system and document security. If an individual makes a choice not to follow that system, it is a deliberate act and that person should be held responsible for the exposure of information."
Yet even Whitaker said he could still see potential value in scrutinizing at least one of the laws involved. "If you read the Espionage Act, it reads like it was written a long time ago. It mentions things that are really sort of not applicable in today's day and age. Certainly it could be modernized."
In terms of what needed revision, Pompeo took a mixed view. "I'm not sure there's a whole lot of change that needs to happen to the Espionage Act. The Federal Records Act clearly needs updating to reflect the different ways information is communicated and stored. Given the move in technology and communication methods, I think it's probably due for an update."
Absent that revision, Pompeo said, federal prosecutors are ultimately responsible for the nuances of enforcement when it comes to cutting edge bungling. "The Justice Department will make a decision based on the level of harm that was caused, and the level of intention with which the harm was created. They use their judgment to determine the level of culpability. I think it would be better if the law reflected that more clearly."