Since the creation of Snapchat in 2011, many Americans regularly communicate via ephemeral messaging applications. While novel forms of communication technology—such as e-mails or text messages—have historically created complex record retention problems, ephemeral messaging applications are different because these applications delete messages by default. Thus, this deliberately ephemeral communication model presents unique challenges when used by a sitting United States President because the Presidential Records Act, which mandates record retention, leaves citizens powerless to prevent the President from destroying Presidential Records. This Article presents two potential solutions to this “Presidential-sized” problem. First, Congress could create a private right of action for citizens to challenge the President’s use of ephemeral messaging applications to prevent the loss of important government records. Alternatively, since the government owns Presidential records, a President’s use of ephemeral messaging applications could be treated as the destruction of government property.
Author: Caroline Madison Pope
Volume 23, Issue 1