I was cited in this @npr article today about Donald Trump’s use of Twitter and the various legal issues under the Presidential Records Act of 1978 and the Presidential and Federal Records Records Act Amendments of 2014. Lots to unpack here. LOTS.
If you’ve ever wondered about the laws that govern Donald Trump’s tweets & typos, you’ll enjoy it. #unpresidented #covfefe #honered #popculture #popcultureclass
Roughly two years ago, I wrote about this a lot. Who knew what we'd be in for...
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My interest in the topic started because of a property law concept I was teaching 1Ls several years ago...the "right to destroy." This is something every first year property law student hears about. It is a fundamental tenet of property law. papers.ssrn.com/sol3/papers.cf…
The right to destroy shows up lots of places, from what to do with unused frozen human embryos to how to handle wills that demand pets be euthanized and buried with deceased owners. Generally, the law gives you a broad right to destroy your property, unless law/policy says no.
One year, pre-Trump, I explored the concept of destroying presidential records with my 1L property class. If a private citizen shreds documents, the law generally says, "cool." This used to be true for many American presidents, who often destroyed letters and other records.
Presidential records were the personal property of the president until Richard Nixon came along. Congress was worried that Nixon would destroy the Watergate tapes. So, they passed the Presidential Recordings and Materials Preservation Act of 1974 to seize Nixon's records.
Yes, the Presidential Recordings and Materials Preservation Act of 1974 was created just for Richard Nixon.
Before Nixon, Congress had never really needed a law for this. FDR has set a standard in the 1940s by creating the first presidential library and donating his papers, and later presidents followed suit...Until Nixon. history.com/news/president…
The 1974 law was a quick fix to seize as much of the Watergate stuff as possible & it applied only to Nixon. 4 years later, Congress passed the Presidential Records Act, which was broader & set standards for later presidents re. the materials they create in an official capacity
The PRA basically makes presidential records public property that belong to the government, and hence, the American people.
The PRA sets strict rules for presidential records. This includes material related to “constitutional, statutory, or other official or ceremonial duties of the President.” Of course, the PRA was passed in the 1970s, when we didn't have the technology we have now.
The 2014 amendments do provide some updates to include electronic messaging accounts. Between the 2014 law, and the National Archives interpretation of the law, presidential records should include things like social media, text messages, email, and the like.
In 2017, Senators Claire McCaskill and Tom Carper asked the Archivist of the United States to clarify whether and how they were monitoring and archiving tweets. Here's the letter where the Archivist answered their questions: archives.gov/files/press/pr…
Presidents don't have warm and fuzzy feelings about the PRA. Basically, they want great latitude about what they can do with their documents.
But, the public actually needs to have official, secure archiving of these materials. When presidents use technology in a disruptive way int their campaigns and presidencies, it's a critical window to assess, study, and share. Like it or not, this is American history, ya'll.
I wrote an article about presidents using disruptive technology to win elections and connect with supporters: FDR's fireside chats, JFK's use of television to beat Nixon, Obama's use of the internet, and Trump's use of Twitter. Wanna hear it? Here it go: tinyurl.com/y4hnhsza
Basically, as my mother says, the more things change, the more they stay the same. Had anyone studied history, they would have seen Donald Trump's victory coming a mile away.
Gosh, how long is this thread??? If you're still here, I've got more. #TLDR
At any rate, when Trump became president, the issues started right away. Within 24 hours, he posted and deleted this tweet. And then corrected it and deleted that one too. 
IMHO, this immediately brings forth all kinds of "right to destroy" issues and, obviously, the Presidential Records Act. Tweets are part of the official presidential record. So if Trump’s tweets are deleted or altered, the originals should also be archived.
The White House has indicated that they are archiving tweets, including deleted tweets, but to my knowledge it hasn’t said how. theverge.com/2017/4/3/15168…
Yes, third parties are saving Trump's tweets as well. Check out factba.se/topic/deleted-… and trumptwitterarchive.com, for example. But, these are private parties who have no obligation to the American people to maintain them.
Why does it matter if we keep records of a president's deleted tweets? #1 History. Like him or not, Trump is dominating headlines and conversations in 280 characters nearly every day. Historians will document and share these moments with our children, their children, and so on.
Why does it matter if we keep records of a president's deleted tweets? #2 Global diplomacy. In my article, I mentioned multiple tweets that could, and in many instances did, have diplomatic ripple effects.
Why does it matter if we keep records of a president's tweets? #3 Lessons for politicians, policy-makers, & anyone looking to build support. Again, like it or not, Trump has a voracious base. Maybe people could, like, ya know, learn how to use similar strategies to win elections?
Remember when Bahtiyar Duysak set the ball in motion to have Trump’s twitter account deleted? While he says he didn’t think the account would actually be deleted, it was cnbc.com/amp/2017/11/30…
It was pretty easy for Duysak to set the wheels in motion to delete Trump’s Twitter account. He didn’t hack anything or do anything illegal/against company policy. Imagine what hackers COULD do.
All of this is even more reason to have transparency about Trump’s method for archiving things like Tweets. They’ve been a crucial and central part of his entire presidency.
But, I asked students, how does this translate today, when Presidents use email, Twitter, iMessage, etc.? Is deleting a tweet part of this “right to destroy” or nah? Before I told them the law, I asked for their best policy-based arguments for or against. It was....interesting
Then we talked briefly about the current law. Which is, IMO, robust but has no real teeth.
