President Trump’s first tweet in office was sent within an hour of his inauguration on January 20, 2017, and it has been followed by hundreds of tweets from both @POTUS and @realDonaldTrump. Are his tweets considered presidential records to be preserved permanently by the National Archives and Records Administration at a future Trump presidential library? What is the record status of his deleted tweets? And what is the record status of other state-of-the-art communications like Confide and Signal, which are designed to self-destruct like the message on the tape in “Mission: Impossible”?
I wrote an article for Bloomberg Law that analyzes the state of these communications under the Presidential Records Act and existing case law, titled “Presidential Tweets and Self-Destructing Messages Under the Records Laws: The New Normal.” In light of D.C. Circuit precedent in the Armstrong v. Executive Office of the President line of cases, a court should have no trouble deciding that @POTUS tweets (even deleted ones), and many of the tweets from @realDonaldTrump — a private account set up in 2009 prior to the President assuming office – relate to the President’s official responsibilities and thereforeare to be considered covered under the PRA, 44 U.S.C. § 2201 et seq.
However, open questions exist with respect to the record status of particular tweets, i.e., whether courts have jurisdiction to essentially second-guess decisions made by the president and White House counsel as to whether a tweet is “personal” in nature and therefore off-limits to permanent preservation. Similarly, existing case law leaves open for interpretation whether courts may intervene if the White House decides that no duty exists to permanently capture communications on other applications before they “self-destruct.” The article discusses how two new public interest lawsuits, challenging various aspects of presidential communications on recordkeeping and First Amendment grounds, raise novel recordkeeping issues.
As the article points out, the White House experience with these new communications technologies raises information governance issues that should resonate in the private sector. One area of concern for businesses is possession and control issues for online applications employees may use to communicate about company business and/or store company documents, all of which are outside the IT shop’s immediate control. In this respect, both the private and public sectors are living in a whole new world, and should be thinking through its implications for recordkeeping.