August 21, 2015: In many cases, information in Clinton’s emails were “born classified.”

That means they were classified from their creation. A Reuters analysis concludes, “In the small fraction of emails made public so far, Reuters has found at least 30 email threads from 2009, representing scores of individual emails, that include what the State Department’s own ‘classified’ stamps now identify as so-called ‘foreign government information.’ The US government defines this as any information, written or spoken, provided in confidence to US officials by their foreign counterparts.” Although unmarked, Reuters’ analysis suggests that these emails “were classified from the start.”

J. William Leonard, a former director of the NARA Information Security Oversight Office, said that such information is “born classified” and that “If a foreign minister just told the secretary of state something in confidence, by US rules that is classified at the moment it’s in US channels and US possession.” According to Reuters, the standard US government nondisclosure agreement “warns people authorized to handle classified information that it may not be marked that way and that it may come in oral form.”

The State Department disputes Reuters’ analysis but does not elaborate or explain why. (Reuters, 8/21/2015)

February 29, 2016: Clinton’s 2,000 “confidential” emails could still be signs of serious crimes.

With all of the Clinton work emails publicly released, it is clear that the vast majority of her emails later deemed classified are considered “confidential.” 2,028 of her 2,115 classified emails have that ranking, which is the lowest classification ranking. (The New York Times, 2/29/2016) 

However, the Daily Beast has reported, “Excuses that most of [them] are considered ‘confidential’… cut no ice with many insiders. Although the compromise of information at that level is less damaging… it is still a crime that’s taken seriously by counterintelligence professionals. Most of the classified emails that Hillary and her staff seem to have compromised dealt with diplomatic discussions, which is a grave indiscretion as far as diplomats worldwide are concerned.” (The Daily Beast, 9/2/2015) 

Almost three-fourths of Clinton’s classified emails are deemed to contain “foreign government information,” meaning sensitive information from, to, or about foreign governments. (The New York Times, 5/10/2016)

May 2, 2016: The State Department changes its policy on when foreign intelligence should be considered classified.

State Department legislative liaison Julia Frifield sends a letter to the Senate indicating an apparent change in what information the State Department considers properly classified. The vast majority of redactions in Clinton’s emails are for foreign government information, to which Frifield refers as “FGI.”

Frifield writes, “Although the unauthorized release of FGI is presumed to cause harm to the national security—thereby qualifying as Confidential [level] classified information, department officials of necessity routinely receive such information through unclassified channels. For example, diplomats engage in meetings with counterparts in open settings, have phone calls with foreign contacts over unsecure lines, and email with and about foreign counterparts via unclassified systems. Diplomats could not conduct diplomacy if doing so violated the law.” As a result, not all such information should automatically be considered classified.

However, regulations in effect when Clinton was secretary of state called for FGI to be marked “confidential” unless it was designated “C/MOD” (for “confidential/modified handling”). But none of Clinton’s emails appear to have been given that designation. (Politico, 5/12/2016)