A Trend You Can't Ignore: Social Media as Government Records and Its Impact on the Interpretation of the Law
Posted: 28 Oct 2020 Last revised: 8 Jan 2021
Date Written: September 8, 2020
There has been a sharp increase in official communications from government agencies and elected officials that occur initially, primarily, and even solely, on social media. The Federal Records Act (FRA), Presidential Records Act (PRA) and the Freedom of Information Act (FOIA) govern the retention, access, preservation and disclosure of records produced by the federal government. Recent litigation has highlighted why courts, attorneys, and other legal researchers must consider social media as a primary source of government information, particularly when records may become inaccessible once a social media post is modified or deleted, or when technology becomes obsolete. Additionally, as social media platforms are invoked to preserve the historical record, the absence of clear, consistent retention policies for social media compounds the access and preservation issues researchers face when government information can be digitally erased days—or even minutes—after it appears. The article establishes that until clear and consistent retention policies exist and there are systemic ways to access and preserve social media as government information, the definition of a “record” becomes irrelevant.
Keywords: social media, government record, government information, access, preservation, FRA, PRA, FOIA, Federal Records Act, Presidential Records Act, Freedom of Information Act, record keeping, record retention, preservation
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