All the President's IMs: Are Federal Record-keeping Laws Out of Step With Modern Communications?
By MICHAEL C. DORF
|Monday, Jan. 12, 2009
Security experts and legal advisers have urged President-elect Barack Obama to give up his beloved Blackberry. Obama is reluctant. "I'm still clinging to my BlackBerry," he said last week. "They're going to pry it out of my hands."
The President-elect has explained that as President, he will be surrounded by people who--despite his best efforts--will be tempted to tell him only what he wants to hear. His Blackberry, he contends, would enable him to stay in touch with a wider group.
No doubt there is something to that point, but as a "Crackberry" myself, I suspect that part of Obama's problem is simply personal: Once one gets used to the constant availability of the sorts of applications that run on a Blackberry, iPhone or comparable device, doing without them feels like a form of isolation.
Obama appears to be losing the fight over his Blackberry partly because of legal concerns. Lawyers worry that whatever messages he sends or receives will eventually become a matter of public record under the Presidential Records Act ("PRA") of 1978. Their concern is legitimate, but as I shall argue in this column, that fact may suggest that our federal record-keeping laws are out of step with the ways in which people now communicate.
To begin, it may not be possible for the new President to use his Blackberry--for email, text messages, or as a mobile telephone--without running an unacceptably high risk that his communications would be intercepted.
Although users of mobile devices typically act as though our communications are secure, in fact they can be hacked. Mostly we rely on our own relative obscurity for protection. As long as you're only using websites with encryption to transmit credit card numbers and other financially-valuable data, you can usually assume that no one is much interested in finding out what you and your old college roommate think about your respective fantasy football teams.
But obviously the President of the United States is quite different. Even a small risk of a hacker obtaining the President's private voice or text communications could pose risks to national security. To be sure, the military has developed methods of secure wireless battlefield communications, and certainly the President could use such methods to communicate with other government officials. However, once messages leave the secure system, they are subject to the possibility of interception.
For such reasons, security concerns alone may make it currently impossible for the President to communicate to outsiders via his Blackberry. Yet one can easily imagine technological breakthroughs that would obviate these concerns. At that point, the privacy of Presidential communications would depend principally on the trustworthiness of the people with whom he chose to communicate, and on the law.
The Presidential Records Act
In the wake of Watergate, Congress took a number of actions to ensure that future Presidents would leave a historical record of their tenure in office. The end result was the PRA, which, in its key provisions, obligates the President to preserve records of his deliberations, decisions, and policies, and to disclose these to the National Archives for eventual public release no later than twelve years after the conclusion of his administration. The Act specifically includes "electronic or mechanical recordations" within the covered category of "documentary materials." There is no doubt, therefore, that email--whether sent or received via a computer, or via a handheld device--falls within the Act.
The PRA does not require that all emails (or other documents) be saved for the archives. It only applies to those materials that "relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President." The PRA thus exempts "personal" materials, where they are "reasonably segregable" from official records.
In addition, two executive orders, one issued by President Reagan, and another issued by President George W. Bush, further limit the scope of the PRA, by setting forth procedures for preventing the disclosure of privileged materials. The Bush order is so broad that it essentially guts the PRA. It purports to exempt from disclosure to the archivist, those "records that reflect: military, diplomatic, or national security secrets (the state secrets privilege); communications of the President or his advisors (the presidential communications privilege); legal advice or legal work (the attorney-client or attorney work product privileges); and the deliberative processes of the President or his advisors (the deliberative process privilege)." What's left? Perhaps the prepared text of Presidential statements to victorious Superbowl teams touring the White House.
The stunning breadth of the Bush executive order reflects the general view of the outgoing administration that the secrecy of executive deliberations outweighs any public interest in transparency. Accordingly, it has been subject to withering criticism, including prior columns by John Dean (here and here) on this site. Given what the President-elect has said in the past about the proper scope of executive branch secrecy, there is reason to hope that the Obama Administration will rescind or substantially modify the Bush order and honor the spirit of the PRA.
But doing so will leave the new President legally vulnerable, should he have the technological capacity to communicate securely via his Blackberry. Purely personal emails would not have to be preserved for the archivist. Yet Obama's core stated reason for wanting to continue to use his Blackberry (and email more generally) is that he wants to stay in touch with people who can inform his views about policy, not fantasy football. Thus, under a properly restored version of the PRA, most of Obama's email and text messages would have to be saved for the archives.
Should All Emails Count as Documents?
Well, one might ask; what's wrong with that? Isn't the whole point of the PRA precisely to preserve a record of Presidential deliberations? And if college or law school friends of Obama are giving the President advice about the stimulus package or the Middle East, that is surely of historical interest, is it not?
The answers to these questions may depend on how we conceptualize electronic communications. In some contexts, email is simply a fast modern delivery device for conventional documents. For example, if a Presidential speechwriter emails the President a draft of a speech as an attachment, there is no good reason for the law to treat that attachment any differently from a hard copy of a speech that a speechwriter in an earlier generation might have handed the President. And that is equally true whether the President prints out the document, reads it on his desktop screen, or reads it on his handheld device. Email and related electronic means of communication function in this context like documents.
In other contexts, however, text sent electronically substitutes not for print but for face-to-face or telephonic conversations. Increasingly, and especially among the young, email and text messaging have replaced oral conversation.
This trend is not necessarily socially beneficial. Text omits tone of voice and facial expressions that give nuance to conversation and that play an important role in satisfying the natural desire for companionship. But be that as it may, if the point of Presidential recordkeeping is to preserve "documents," a two-line text message arguably should be classified as a "conversation" that would not otherwise be captured. Unfortunately, however, the language of the PRA pretty clearly precludes such a classification.
The Law Should Not Encourage Luddites
In each of the last two Presidential campaigns, the Republican candidate showed himself to be less than fully comfortable with the vocabulary of modern communications. In a 2004 debate, President Bush referred to "rumors on the internets," and earlier this year, Senator John McCain described his running mate selection process as "a google." In both instances, everyone knew what Bush and McCain meant, but the malapropisms arguably bespoke a broader lack of familiarity with the modern tools of telecommunication.
Whether or not that was a fair impression of Bush and McCain, we should be wary of any legal regime that discourages the President from using electronic tools that make it easier to do the job. If it would be a more effective use of the time of the President and his staff for them to communicate by instant message sometimes than always to have to schedule face-to-face meetings or telephone calls, then the law should not discourage electronic communications.
The problem of how to classify electronic messages has broader ramifications. Private firms sued in civil actions must produce relevant documents--including records of emails and text messages--while they do not have to produce transcripts of face-to-face and telephone conversations, for the simple reason that the latter leave no record. But at least in the civil litigation context, the law in principle treats these categories the same. Absent a valid privilege, if asked about a relevant conversation that produced no permanent record, a party or party's agent must divulge the substance of that conversation, at least to the best of his ability to remember. Of course, this regime makes it easier for a bad actor to cover up purely oral conversations than to cover up email and other written communications, but for a law-abiding firm, there is no ex ante distortion of incentives for using various modes of communicating.
The Presidential Records Act, by contrast, draws a distinction between written and spoken words, even in principle. The White House keeps logs of who called or was called by the President but, as far as the public can tell, does not routinely record those calls (at least since the days of President Nixon). Accordingly, there is no legal requirement to preserve the contents of telephone conversations, even though there is a legal requirement--in the PRA--to preserve emails and text messages.
In the end, security concerns alone may be sufficient to prevent the new President from being able to continue to use his beloved Blackberry. Or, if the security concerns are allayed, perhaps Obama will decide that the advantages of using his electronic devices justify the associated cost of compliance with the PRA.
However this relatively small matter is resolved, Congress, state legislatures, and courts will eventually have to pay attention to the larger issue: Emails, text messages and other electronic means of communication--some of them yet to be invented--are not simply newfangled ways of conducting long-established modes of human interaction; they can also be new and unique activities in their own right. Until our law catches up with our devices, distortions will be inevitable.