In the days leading up to the inauguration, President Barack Obama's BlackBerry was in the news almost as much as he was. Questions like, "Will he keep it?" "Is it safe enough?" and "Shouldn't he get an endorsement deal?" were bandied about in the tech press especially.

The security angles were covered ad nauseum, as they were the most obvious. Smartphones are easily hacked. Messages can be easily intercepted. Geolocation functionality in some would reveal the user's physical location to anyone interested enough in finding out. All of these are serious concerns when the user is the President of the United States, and no doubt they had to be addressed by various agencies before they decided he would keep his smartphone -- with certain restrictions, of course.

Notwithstanding all the coverage, it never became clear if there were laws or regulations on the books that would govern how the President can communicate, or what devices he could use. It also never became clear who gets to make the final decision on how the President and his staff can communicate, but it appears to be a joint decision between the security agencies and the White House.

Former Deputy White House Chief of Staff Joseph Hagin, who served President George W. Bush from 2001 until July 2008, explained that there are archiving requirements set out in the Presidential Records Act, found at 44 U.S.C. chapter 22. Generally, it provides that all "presidential records" are owned by the United States and should be maintained separately from personal records so 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."

The second restriction, according to Hagin, is found in the government regulations concerning the transmission of classified information. Such information, classified as confidential, secret, top secret, or sensitive, compartmentalized, can only be transmitted or received via devices that have been approved for such information. The rule is cut and dried, black and white, and everyone with a security clearance knows they can't just send that information over an open network.

In theory then, as long as the president and his staff can keep "presidential records" separate from personal records, and don't send or receive classified information improperly, there should be no problem if the President wants to keep his BlackBerry and use e-mail, right?

Yes. Other than those two limitations, the President has complete discretion. Each administration sets its own regulations for how the White House staff will communicate, and even those can change with circumstances. Hagin explains further, "When we first got to the White House in 2001, there were no BlackBerries. The security agencies had decided they were too vulnerable... Sept. 11 changed everything because we were struggling terribly to communicate on Sept. 11... So not long after, the White House purchased I think 50 [devices], and then went to 200. Today, almost everyone who works there has one."

Nonetheless, the decision for or against a smartphone for the President isn't easy. It's a balancing act between security and productivity, according to Hagin. And then there are the more political concerns: What if the President's friend or family member sends him something that's not illegal, not improper, not "in the course of his duties," as contemplated in the Presidential Records Act, but something that might be seen as controversial or offensive if taken in the wrong context? And what if, for whatever reason, that e-mail or voicemail ends up in the public domain?

"You can imagine...the questions that would come," Hagin says. "Did the President repudiate his friend? Did the President cut off contact with his friend? Does the president agree with his friend? ...All of a sudden you have the President having to defend information that he had no control over receiving... that becomes a permanent part of the presidential record."

Everything that the president sends or receives is sensitive information, just because he is the President. In fact, says Justin Kelton, a New York-based associate in the law firm of Bickel & Brewer, there is a presidential privilege, similar to the attorney client privilege, that applies to presidential communications. But an argument can be made, he says, that because smartphones can be hacked and mobile messages can be intercepted, the privilege doesn't apply to communications sent via mobile device because the President knows there's a chance third parties could see or hear them.

Though there is little authority on this issue yet in the case law, the argument might be extended to question whether mobile communications sent by anyone are or should be protected by legal privileges. Hagin makes a similar observation: Any of us who use smartphones to communicate are as vulnerable as the President is to hacking and interception of information.

It may be, then, that those who are agonizing over the President's privacy and security (for good reason, of course) are causing the general population to lose sight of the bigger picture: Everyone should be more concerned about the security and privacy of the communications they transmit via mobile devices. It’s a problem that will change as the technology changes, not eventually disappear.