How the National Archives and Records Administration Preserves the Electronic Communications of the President of the United States

Digital Preservation and Social Media in the White House: How the National Archives and Records Administration Preserves the Electronic Communications of the President of the United States

Julia Alforde

School of Library, Archival and Information Studies University of British Columbia 23 November 2019

If the United States House of Congress Impeachment Inquiry into 45th President Donald Trump taught Americans anything, it is that the people of the United States must demand transparency from their government. The incomplete record of what took place between world leaders, politicians, and lawyers affiliated with the United States (U.S.) government made it difficult to establish admissible and contextually relevant evidence during court proceedings. The communication logs presented during the trial were decontextualized, insufficient evidence of the allegations against the president involving the withholding of military aid. What most Americans don’t know, is that a higher degree of transparency can be accomplished through the implementation of a trusted recordkeeping system. However, due to the variation in electronic communication channels and the novelty of a few in particular, such as social media, the steps taken by records managers to capture these communications have not been enough to ensure transparency. The difficulty in acquiring and preserving modern modes of communication has been persistent, but awareness and research into these technologies has made great strides forward in recent decades. This paper will explore the U.S. government Executive Branch’s adoption and usage of electronic communication and what the National Archives and Records Administration is doing to preserve the records being created. Under the Federal Records Act, the National Archives and Records Administration (NARA) is the U.S. government record keeper, or as the Chief of Special Access and FOIA Staff, David Mengel, defines it, NARA is “the custodian for the permanently valuable records created by or for the Federal Government.” 1 2 It is an independent agency that manages all of the records by and for U.S. government agencies, and permanently preserves them. NARA was established in 1934 by the 32nd president of the U.S., Franklin Roosevelt, and has since preserved the nation’s essential documents, and has helped to hold government leaders accountable. 3 NARA preserves 2-5% of the records created by and for U.S. agencies and stewards holdings consisting of tens of millions of analogue records and several hundred terabytes of electronic data. 4 These electronic data comprise the electronic records in NARA’s care, which are exponentially increasing in number. According to the International Research on Permanent Authentic Records in Electronic Systems (InterPARES) 2 Project “an analogue or digital record that is carried by an electrical conductor and requires the use of electronic equipment to be intelligible by a person.” 5 Since 1999, InterPARES has conducted research into how to define the electronic record and how to assess its trustworthiness, and in 2005, the Electronic Records as Documentary Evidence Standard (CAN-CGSB 72.34) was published in order to explain how to rely on electronic records (and what they must possess) to be used and considered admissible in legal proceedings. 6 However, it is the records manager who must first acquire these records in order for them to be useful in any archival capacity by deciding which records are worth preserving, and determining which of those will remain active, and which must be set aside for the long run (a

1 “About the National Archives of the United States | National Archives.” 2019. National Archives of the United States. 2019. https://www.archives.gov/publications/general-info-leaflets/1-about-archives.html. 2 Mengel, David J. 2007. “Access to United States Government Records at the U.S. National Archives and Records Administration,” 1–13. Page 1 3 “About the National Archives of the United States | National Archives.” 2019. National Archives of the United States. 2019. https://www.archives.gov/publications/general-info-leaflets/1-about-archives.html. 4 Ibid. 5 InterPARES 2 Project. 2008. “The InterPARES 2 Project Glossary.” 2008. http://www.interpares.org/display_file.cfm?doc=ip2_book_glossary.pdf. 6 Landwehr, By Regina. 2007. “Electronic Records as Documentary Evidence Standard (CAN-CGSB 72.34): A Case Study from The University of Calgary.” 3 process beginning at the record’s creation). Records management is primarily concerned with the legal requirements involved in recordkeeping, such as discovery (including e-discovery), retention, disposition, and auditing. Yet, in order for these functions to be manifested, the records manager must also consider record requirements such as preservation, migration, security, and risk. Records management is performed using a record-making system and a recordkeeping system. A record-making system is a set of rules governing how records are made and which tools and methods are used (i.e. integrated business and documentary procedures, records forms, record-making access privileges, and record-making metadata). A recordkeeping system is a set of rules for the storage, use, maintenance and disposition of records, associated information, and the tools and methods used (i.e. classification schemes, retention schedules, a registration system, a record-keeping retrieval system, a recordkeeping metadata system, access privileges, and audit and transaction logs). To perform records management duties, recordkeeping requires the provision of appropriate technical infrastructure, and is consistently looking towards new technologies and how to manage their intricacies for capture and preservation. When it comes to new and emerging technologies, records managers must make sense of unfamiliar environments, such as social media, in order to diligently continue their duties into the future. The Obama Administration was the first presidential administration in the U.S. to make use of social media. The Administration boasts that they were “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, [and] the first to use a filter on Snapchat.” 7 Barack Obama’s firm online presence was partially due to the opportune time frame in which the Obama campaign ran for and won the presidency. During the campaign leading up to the 2008 presidential elections, social media was gaining popularity and quickly becoming a powerful communication tool, giving political figures the ability to amass followers and broadcast their political platforms to millions of voters. On the other hand, the Obama campaign was creating novel approaches to social media use. They launched a campaign that relied upon the widespread use of social media platforms (e.g. Twitter, Facebook, and Flickr, Vimeo, iTunes, and Myspace), surpassing their political opponents in social media adoption and online recognition. 8 The use of the social media platform named ‘Twitter’ by politicians since 2008 has seen an exceptional increase in popularity, inciting both questions of ethics and of preservation. The ethical concerns of increased social media use rest upon the uneasy realization that the communication channels of influential politicians are now in the control of poorly regulated tech giants with little integrated records management functionality. However, these concerns have neither stopped nor slowed the use of Twitter by politicians. In fact, Twitter (and other social media platforms) have become so ingrained into political and personal communication, that those channels of communication are passed down from one president to another. For example, the Obama administration “revamped” the WhiteHouse.gov website and created the Twitter handle ‘@POTUS’. Now, both of these accounts have been migrated to obamawhitehouse.gov, and @POTUS44, respectively. The current U.S. president, Donald Trump, now uses the original @POTUS and whitehouse.gov accounts. 9 The accounts were migrated, wiped, and made new for the incumbent. From the beginning of the Obama Administration, throughout it, and into

7 Schulman, Kori. 2016. “The Digital Transition: How the Presidential Transition Works in the Social Media Age | Whitehouse.Gov.” The White House, President Barack Obama. 2016. https://obamawhitehouse.archives.gov/blog/2016/10/31/digital-transition-how-presidential-transition- works-social-media-age. 8 Ibid. 9 Ibid. 4 the Trump administration, social media has become an integral communication tool which places an exceptional responsibility on the shoulders of NARA, who must craft and implement policies to account for this new rapid-record-making phenomenon. The U.S. executive branch is subject to the Presidential Records Act (PRA) of 1978 which has governed the official records of the president and vice president since 1981. The Act foremost dictates that the official records of the president belong to the American public, and not the individual. 10 The act was introduced following President Richard Nixon’s Watergate scandal, and his subsequent attempts at record destruction. 11 The Act also lays out the following two points:

1. [The requirement] that the President take all practical steps to file personal records separately, and

2. [Establish] preservation requirements for official business conducted using non-official electronic messaging accounts: any individual creating Presidential records must not use non-official electronic messaging accounts unless that individual copies an official account as the message is created or forwards a complete copy of the record to an official messaging account. 12

The first provision states that presidents must file their personal records separately from official ones, which will undoubtedly be confounded by the intermixing of personal and official communication on social media. The ability to separate personal from official records will become increasingly cumbersome unless a clear distinction is made between personal and official communication records, and then put into law. The second provision states that the president cannot use unofficial electronic messaging for official purposes unless a record of those messages is copied by, or forwarded to, an official messaging account. This means that all of the messages communicated through personal social media must be either (a) official, or (b) unofficial and copied through an official channel. The consistent use of social media by U.S. presidents brought new meaning to the above provisions. The difficulty in capturing, copying, and migrating messages over to official channels of communication is a labourious challenge for individuals and records managers. In order to deal with the introduction to and inundation of electronic records, NARA introduced the Electronic Records Archives (ERA) system in 2008. The ERA is a cloud-based electronic preservation system which manages the end-to-end lifecycle of electronic records in NARA’s care. NARA asks various U.S. government agencies to submit their own records through the ERA according to their legal recordkeeping obligations (retention, disposition, etc.). 13 The ERA’s main goal is to establish an archives that ensures access to verifiably authentic records, so that they may be available for further

10 “Presidential Records Act (PRA) of 1978 | National Archives.” 2018. National Archives and Records Administration. 2018. https://www.archives.gov/presidential-libraries/laws/1978-act.html. 11 Abel, Jennifer, Emily Guthrie-Plouffe, Graeme Niedtner, Dave Shively, and Brett Swanson. 2018. “Digital Preservation Strategies of the National Archives and Records Administration.” Page 29 12 Ibid. 13 “About ERA | National Archives.” 2016. National Archives and Records Administration. 2016. https://www.archives.gov/era/about. 5 use, or accessed by the public. 14 It has streamlined access to presidential records by incorporating a component which “supports review functionality” for the restriction and redaction of controlled content, allowing the records to be easily managed by NARA once presidential records become available to the public (five years after the end of the administration) via the Freedom of Information Act (FOIA). 15 16 However, it should be noted that while the ERA is planning the release of ERA 2.0, as of 2019, the website has not been updated since October 2016, outside of an audit of ERA 2.0 in 2017. NARA also implemented the Capstone Project, a system developed during the Obama Administration in order to manage email records. The Capstone Project allows email users to automatically manage their files without resorting to print-and-file, drag-and-drop, or other methods that require staff to individually file their own email records. 17 This automated system “allows for the capture of records that should be preserved as permanent” from high level employees (whose emails are preserved according to law) and mitigates human error. 18 By decreasing the probability of human error (through accidental or intentional misfiling or deletion) the Capstone Project is able to increase the transparency of email communications involving government officials. The Capstone Project was also implemented in accordance with the 2011 Presidential Memorandum on Managing Government Records, which was “an executive branch wide effort to reform records management policies and practices” during the Obama Administration. 19 However, neither an electronic records repository, nor an automated email capturing system, can account for the ‘liquid communications’ of the modern politician. Many politicians conduct their business through a mixture of official and unofficial messaging accounts and platforms. For example, the conversations between political officials that were presented as evidence during the 2019 Impeachment Hearings were fragmented, in part, because the conversations spanned across various platforms. Conversations may have begun with emails, but were interspersed with SMS messages, phone calls, video calls, and Tweets. Arguably, the first step toward mitigating the recklessness of liquid communication should be the firm enforcement of the PRA provision that states that only official messaging accounts can be used for official communications. Another option is to reframe the personal messaging platform communications from ‘unofficial’ to ‘official’ communication, and to develop a system for capturing those messages. In defense of the various officials that defy the regulatory laws that govern the records they create (or should be creating), they are not alone. Not only is much of the global population using social media, but the influence of the president of the U.S. makes an impact on what other government employees consider permissible conduct. In the Information Age, and with the explosion of social media, President Donald Trump has paved the path forward for excessive social media use in a fashion that blurs the borders between official and unofficial communication. According to an Associated Press article from

14 “ERA Status and Accomplishments | National Archives.” 2016. National Archives and Records Administration. 2016. https://www.archives.gov/era/about/status-accomplishments.html. 15 Ibid. 16 “Presidential Records Act (PRA) of 1978 | National Archives.” 2018. National Archives and Records Administration. 2018. https://www.archives.gov/presidential-libraries/laws/1978-act.html. 17 “Bulletin 2013-02 | National Archives.” 2013. National Archives and Records Administration. 2013. https://www.archives.gov/records-mgmt/bulletins/2013/2013-02.html. 18 Ibid. 19 “Presidential Memorandum -- Managing Government Records | Whitehouse.Gov.” 2011. The White House President Barack Obama. 2011. https://obamawhitehouse.archives.gov/the-press- office/2011/11/28/presidential-memorandum-managing-government-records. 6

January 2017, “archives spokeswoman Miriam Kleiman said that presidential Tweets, like all electronic communications ‘created or received’ by the president or his staff, are considered presidential records.” 20 The Privacy Policy hyperlinked on the @POTUS Twitter account confirms this statement: “on Twitter, the White House automatically archives ‘Tweets’ from official White House accounts and may capture ‘mentions’ (Tweets from other users mentioning official White House accounts).” 21 However, issues still arise from the troublesome ability of the president to share personal opinions, videos, and other information on Twitter, little of which relate to the duties associated with the position. Further endangering transparency, Donald Trump has repeatedly deleted Tweets with misspellings or otherwise unwanted information. 22 Despite NARA’s insistence that Tweets from the @POTUS account are official records protected under the PRA, Tweet deletion and personal and official business integration persist. In what may be viewed as a bipartisan bill with a partisan title, the 2017 COVFEFE Act (H.R. 2884) was introduced by members of the Democratic Party in the House of Congress in order to protect against the deletion of unwanted Tweets and the intermingling of personal and official business by the president. 23 The ultimately unsuccessful bill sought to amend the provisions of the PRA to:

(1) revise the definition of "documentary material" to include social media; (2) revise the definition of "presidential records" to include any personal and official social media account; and (3) define "social media" as any form of electronic communication (such as a website for social networking and microblogging) through which users create an online community to share information, ideas, personal messages, and other content (such as videos). 24

The COVFEFE Act intended to compensate for the lack of regulation concerning social media communications, and capture some of the deleted, and / or personal information (i.e. ideas, messages, and videos) being shared from both the @POTUS and @realDonaldTrump Twitter handle (and considered effective for future presidents). Given the veracity that many voters attach to unofficial social media posts, it is undoubtedly important to regulate the personal social media accounts of presidents using the same laws regulating official ones. As of December 2019, President Donald Trump’s official @POTUS Twitter account has only 27.2 million followers, paling in comparison to his personal account, which has 67.3 million followers. This prompts the question of whether or not the information shared via his personal account should be regulated, and ultimately archived.

20 Braun, Stephen. 2017. “Trump’s Tweets Are Presidential Records, but Deletions?” Associated Press, January 23, 2017. https://apnews.com/adcae7aa54a14b7f909002c2a9ebd6a0/trumps-tweets-are- presidential-records-deletions. 21 “Privacy Policy | The White House.” 2017. White House. 2017. https://www.whitehouse.gov/privacy- policy/. 22 Braun, Stephen. 2017. “Trump’s Tweets Are Presidential Records, but Deletions?” Associated Press, January 23, 2017. https://apnews.com/adcae7aa54a14b7f909002c2a9ebd6a0/trumps-tweets-are- presidential-records-deletions. 23 Quigley, Mike. 2017. H.R.2884: COVFEFE Act. Washington D.C.: 115th Congress. https://www.congress.gov/bill/115th-congress/house-bill/2884. 24 Ibid. 7

The digital preservation techniques involved with archiving communications through social media and other messaging platforms involves the capture of widespread and varied information, and website archiving is a resource-consuming activity. It is unlikely that NARA performs the direct transfer of live technical websites in order to archive social media and messaging communications on a grand scale. On the contrary, it is more likely that NARA performs capture via remote harvesting, using the ‘snapshot’ or ‘crawling’ processes. These processes do not capture live / dynamic websites. Instead, they provide static records. In order to archive the entirety of the social media posts, liquid communications, and private messages being sent and received to and from the executive office, NARA would have to implement a direct transfer system. This highlights the question of feasibility; it is not currently feasible for NARA to make a copy of each technical environment being used by the president and his cabinet. Not only is this more appropriate for a big data environment, but the resources needed for NARA to operate their own cloud, which would house the copied platforms, do not exist. Social media and message platforms are enormous; they have millions of users, large back-end databases, hyperlinks, embedded media, and other space-consuming elements. If NARA did ever decide to perform the direct transfer of a website, it would have to be a website under the sole control of the U.S. government. The illegality of copying the live environment of a privately run social media website is reason enough to stop NARA from undertaking such measures. What can NARA do in light of the widespread use of social media by the U.S. executive office? NARA can stay true to the core duties of recordkeeping. They can work towards transparency through implementing record-making and record-keeping systems, and they can keep conducting research into projects that increase the availability and authenticity of electronic records such as the ERA and Capstone. Perhaps in a less polarized environment, a bipartisan bill will be passed which dictates that the personal social media accounts of the executive office must be considered official channels of communication and that they contain official records. It is the duty of the U.S. government, NARA, and the American people to hold the executive office accountable for its actions, and advocate for the continuance of a trustworthy recordkeeping system.

Citations

“About ERA | National Archives.” 2016. National Archives and Records Administration. 2016. https://www.archives.gov/era/about.

“About the National Archives of the United States | National Archives.” 2019. National Archives of the United States. 2019. https://www.archives.gov/publications/general-info-leaflets/1-about- archives.html.

“Bulletin 2013-02 | National Archives.” 2013. National Archives and Records Administration. 2013. https://www.archives.gov/records-mgmt/bulletins/2013/2013-02.html.

“ERA Status and Accomplishments | National Archives.” 2016. National Archives and Records Administration. 2016. https://www.archives.gov/era/about/status-accomplishments.html.

“Presidential Memorandum -- Managing Government Records | Whitehouse.Gov.” 2011. The White House President Barack Obama. 2011. https://obamawhitehouse.archives.gov/the-press- office/2011/11/28/presidential-memorandum-managing-government-records.

“Presidential Records Act (PRA) of 1978 | National Archives.” 2018. National Archives and Records Administration. 2018. https://www.archives.gov/presidential-libraries/laws/1978- act.html.

“Privacy Policy | The White House.” 2017. White House. 2017. https://www.whitehouse.gov/privacy-policy/.

Abel, Jennifer, Emily Guthrie-Plouffe, Graeme Niedtner, Dave Shively, and Brett Swanson. 2018. “Digital Preservation Strategies of the National Archives and Records Administration.”

Braun, Stephen. 2017. “Trump’s Tweets Are Presidential Records, but Deletions?” Associated Press, January 23, 2017. https://apnews.com/adcae7aa54a14b7f909002c2a9ebd6a0/trumps- tweets-are-presidential-records-deletions.

Ferriero, David S. n.d. “Open Government Plan | Message from the Archivist.” National Archives and Records Administration. Accessed December 6, 2019. https://usnationalarchives.github.io/opengovplan/messages/.

InterPARES 2 Project. 2008. “The InterPARES 2 Project Glossary.” 2008. http://www.interpares.org/display_file.cfm?doc=ip2_book_glossary.pdf.

Landwehr, By Regina. 2007. “Electronic Records as Documentary Evidence Standard (CAN-CGSB 72.34): A Case Study from The University of Calgary.”

Mengel, David J. 2007. “Access to United States Government Records at the U.S. National Archives and Records Administration,” 1–13. 9

Quigley, Mike. 2017. H.R.2884: COVFEFE Act. Washington D.C.: 115th Congress. https://www.congress.gov/bill/115th-congress/house-bill/2884.

Schulman, Kori. 2016. “The Digital Transition: How the Presidential Transition Works in the Social Media Age | Whitehouse.Gov.” The White House, President Barack Obama. 2016. https://obamawhitehouse.archives.gov/blog/2016/10/31/digital-transition-how-presidential- transition-works-social-media-age.