Covfefe? Presidential Records in a Digital Age

The Presidential Records Act [PRA], or 44 U.S.C. [United States Code] Chapter 22, defines the scope of Presidential Records, and indicates laws for their management, archival, ownership, and access privileges.  The PRA defines presidential records as, “documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President,” where “documentary materials” are defined as, “all books, correspondence, memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, and motion pictures, including, but not limited to, audio and visual records, or other electronic or mechanical recordations, whether in analog, digital, or any other form.”

The National Archives says that the PRA, “governs the official records of Presidents and Vice Presidents created or received after January 20, 1981.” Importantly, the PRA establishes six key rules with regard to presidential records:

  1.  “The PRA changed the legal ownership of the official records of the President from private to public.”
  2. The PRA “established a new statutory structure under which Presidents must manage their records.”
  3. The PRA “allows the incumbent President to dispose of records that no longer have administrative, historical, informational, or evidentiary value, once he has obtained the views of the Archivist of the United States on the proposed disposal.”
  4. The PRA “requires that the President and his staff take all practical steps to file personal records separately from Presidential records.”
  5. The PRA “establishes a process for restriction and public access to these records.”
  6. The PRA “requires that Vice-Presidential records are to be treated in the same way as Presidential records.”

The PRA was created partly in response to the Watergate scandal of the Nixon Administration, as there was belief that the President should not be able to unilaterally dispose of or destroy potentially important records from his administration on a whim.

But the PRA was created in 1981, before the widespread advent of email, and certainly before the creation of social media…so what about a President’s social media communications?

Former President Obama debuted his answer to this question on January 5, 2017, with the Obama White House Social Media Archive, which “provides public access to social media content created during the Obama White House years. It contains over 250,000 posts, photos, and videos shared by more than 100 official Obama White House social media profiles […] [and] is being made available in the interest of historical preservation and transparency.”  Former President Obama holds a unique place in history with regard to social media; according to Kori Schulman, Special Assistant to the President and Deputy Chief Digital Officer, President Obama was the first “social media president.”

[He was] the first to have @POTUS on Twitter, the first to go live on Facebook from the Oval Office, the first to answer questions from citizens on YouTube, the first to use a filter on Snapchat. […] In 2009, in addition to rolling out a revamped featuring a blog, RSS, and an email list, we joined Facebook, Twitter, Flickr, Vimeo, iTunes, and even MySpace. In 2011, we launched We the People, a platform for citizens to petition the White House. In 2013, the First Lady posted her first photo to Instagram. In 2015, President Obama sent his first tweet from @POTUS. In 2016, the White House debuted an official story on Snapchat for the State of the Union. […] The archive [of President Obama’s social media] belongs to the American people.

In the digital age we live in, the preservation of these electronic records is essential in forming a complete historical picture.  Indeed, Former President Obama and his transition team treated his social media usage as if it was governed by the PRA; the Obama White House Social Media Archive is a testament to that.  Now, one congressman wants to make it official.

On June 12, 2017, Congressional Representative Mike Quigley of Illinois introduced the Communications Over Various Feeds Electronically for Engagement (COVFEFE) Act, which formally amends the Presidential Records Act to include social media as “documentary material” as previously defined.  President Trump has made unprecedented use of both the official @POTUS twitter account, which is automatically archived, but also his personal @realDonaldTrump account, which is not.  As a result, Representative Quigley introduced legislation to ensure that communications from the President’s personal social media accounts were archived alongside communications from official accounts, in the interest of historical record keeping.  While it remains to be seen whether such a bill is passed, its very existence speaks to the nature of the age we live in, an age in which communication is instant and nearly limitless, and an age in which presidents have more ways than ever before to communicate with their constituencies.

For more information on the PRA, social media usage in an official capacity, and all things related to the digital age and homeland security, check out the HSDL, and explore Featured Topics such as Cyber Policy and Social Media Use in Emergencies.