I drafted another post examining how the proposed COVFEFE Act may infringe upon the President’s First Amendment rights. Imposing the requirements of the Presidential Records Act carte blanche upon the President’s personal Twitter account also strikes me as a potential taking of his personal intellectual property.
Creation, custody, and use of this account fall within his property rights to the extent licensed by Twitter’s Terms of Service, namely: “You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your photos and videos are part of the Content).” In other words, it is Donald Trump’s personal intellectual property.
It seems evident to me—and I invite my IP colleagues to comment—that classifying a personal account as a Presidential record subject to the accompanying custodial requirements constitutes a government taking within the terms of the Fifth Amendment. If this is indeed an exercise of eminent domain over the President’s private property for a public use, then the government would be required to pay the President “fair value” for the taking. This opens a whole other can of worms—not the least of which is determining the “fair value” of Donald Trump’s Twitter account—but it seems conceptually accurate. Again, I invite comment from my colleagues specializing in intellectual property.