The 'BarackBerry:' Why All the Fuss?

Lora Bentley

Long before officials decided President Obama could keep his BlackBerry, my boss and I were wondering what the big deal was. Other than the obvious security concerns, like preventing hackers from intercepting classified communications or not wanting to reveal the President's precise location by virtue of the GPS capability in his phone, are there particular laws or regulations that govern how he can communicate?

 

So I did some digging. I sent interview requests to the U.S. Secret Service and to the National Security Agency to see if they could shed some light on the subject. Not surprisingly, the only response I got was from the Secret Service, which said simply, "We are not commenting on the BlackBerry topic in any way."

 

I e-mailed University of Kentucky law professor Paul Salamanca for his insight. (I took his Constitutional law classes 10 years ago.) Admitting he's not expert in this particular area, he said he did not know of regulations or agency guidelines that addressed the issue. He did note, however, that archiving laws required certain things for recordkeeping purposes.

 

Generally, the Presidential Records Act, found at 44 U.S.C. chapter 22, provides that all "presidential records" are owned by the United States and should be maintained separately from personal records so that the National Archivist can take control of them once the President leaves office. In section 2201, "presidential records" are defined as "documentary materials, or any reasonably segregable portion thereof, created or received by the President" or his staff, "in the course of conducting activities which relate to or have an effect upon" the President's duties. The same section defines "documentary materials" to include, among other things, "books, correspondence, ... papers, pamphlets....and... audio, audiovisual, or other electronic or mechanical recordations."

 

So, security concerns aside for the moment, as long as there are restrictions in place to segregate "presidential" e-mails and voice mails from "personal" e-mails and voice mails, and processes in place to keep them for the National Archives under the terms of the Presidential Records Act, there shouldn't be a problem.


 

However, I'm also looking into questions around privileged communications the BlackBerry might raise. Stay tuned.



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