A Legal Expert Weighs In: Why Archiving Social Media Is Now a Necessity

In today’s digital-first world, government agencies and public institutions rely heavily on social media to communicate with residents, share updates, and respond to crises. But with this increased reliance comes a growing responsibility: making sure that every post, comment, and interaction is properly archived as part of the public record.

To better understand the legal implications of social media archiving, we sat down with Mark Weaver, an Attorney and Communications Advisor specializing in public records law and compliance. We explored the evolving legal landscape, the risks of noncompliance, and why archiving social media is no longer a “nice to have,” but a necessity.

The Legal Landscape: Social Media as Public Record

Social media content posted by public agencies is considered a public record in all 50 United States. That means X posts, Facebook messages, Instagram stories, TikTok videos, and even deleted comments may be subject to Freedom of Information Act (FOIA) requests and other public records laws.

Legal Expert Insight:
“Every state has its own public records law. It’s not a federal question but rather a state-by-state question. In many states, the social media posts of a local government are public records that must be maintained for a period of time under that agency’s record retention schedule. Communications staffers should be careful to make sure that posts are not automatically deleting before the retention period is up. Different states have different laws, and some of them are getting more up–to-date on social media practices while others are well behind the times. This is one of those areas in which your attorney can be very valuable to you because nearly every local government attorney will understand state public records law.”

The Risks of Noncompliance

Failing to archive social media content accurately and consistently can expose agencies to serious legal and reputational risks. Here are some real-world challenges our customers faced prior to implementing Social Media Archiving:

• Skagit County, WA: During a social media crisis, the sheriff’s office faced a flood of public records requests. Manual archiving methods like screenshots proved inadequate, risking non-compliance and public trust.
• Iowa State Government: Without a formal archiving process, staff relied on screenshots or kept no records at all. When a new governor was elected, the lack of a comprehensive archive made it nearly impossible to fulfill legal obligations.
• Grafton Police Department: The department discovered deleted comments during a records request, comments that could have been lost without automated archiving.

Legal Expert Insight:
“State audits require certain kinds of records—usually financial but sometimes programmatic as well. A state audit could call out an agency for not having the records it’s supposed to have, and that could involve a fine, or in some cases, having to pay legal damages. A lawsuit could be very troubling. If a local government agency is sued and destroys records that it should have maintained, in the lawsuit, the judge may be able to instruct a jury to presume the deleted records would have proven that the agency did whatever the lawsuit alleges it did. This is a significant viability problem for agencies that delete records while under a requirement to maintain records.”

Why Manual Archiving is a Liability

Screenshots and spreadsheets may seem like a quick fix, but they’re far from sufficient. Many agencies still rely on manual methods like screenshots to capture social media content, but these approaches often miss critical metadata, fail to capture deleted or edited content, and are prone to human error. Worse, they can’t guarantee the authenticity or completeness required by law.

Legal Expert Insight:
” Every state has its own laws on what records have to be kept and how complete they have to be. You should consult your local government agency attorney for what your state law says.”

The Case for Automated Archiving

Solutions like CivicPlus Social Media Archiving offer a secure, cloud-based platform that automatically captures 90% of social media records within 30 seconds of posting, even if they’re edited or deleted.

Key benefits include:

• Compliance Support: Meet public records laws in your state.
• Transparency: Provide public access to archived content via Open Archive portals.
• Efficiency: Eliminate manual processes and reduce staff burden.
• Risk Mitigation: Preserve volatile content before it’s lost.

Evolving Expectations and Public Trust

For many agencies, social media has evolved far beyond a simple channel for sharing announcements. It has become a public forum where residents ask questions, voice concerns, and engage directly with their local government. In May 2023, 34% of Americans used social media to engage with causes they care about. As public engagement grows, so does the expectation for transparency and accountability.

Legal Expert Insight:
“This is the biggest challenge for government social media coordinators. The majority of policies I review around the country are unconstitutional and subject to federal civil rights lawsuits that would likely be successful. Many agencies are under the false understanding that hiding troublesome comments is somehow different than deleting troublesome comments—and that’s not the law. If one of your critics finds out that you’ve hidden or deleted their critical comment that is otherwise protected by the First Amendment, they can sue your agency for money and sue you personally for money. The law is well settled in this area, which means if they win the lawsuit, you’ll also have to pay the legal fees for the person suing you. This is why every agency needs to have training on how the First Amendment affects social media post comments. Not having training can be introduced as evidence for why the agency should be liable in the federal civil rights lawsuit. This has become the most requested training for me.”

Why “Optional” Is No Longer an Option

The message from legal experts and public records professionals is clear: Proactive social media archiving is essential. Waiting until a records request or for legal challenges to arise is a risky strategy that can lead to noncompliance, fines, and loss of public trust.

Legal Expert Insight:
“People want to learn what the law is because their local government attorneys are smart, but they’ve never been taught this material because it’s so new. Often, the advice local government agencies get from their attorneys is incorrect because they may not be aware that this law has changed dramatically in the last few years.”

You can learn more about how Mark’s team can train and equip your agency here.

Put the Right Protections in Place

Explore CivicPlus Social Media Archiving to see how your agency can confidently preserve public records, strengthen transparency, and reduce legal risk in an increasingly complex digital landscape.

Explore our Social Media Archiving solution.