The records a texting program keeps matter for more than TCPA compliance. Depending on who's texting and in what capacity, messages can become public records, discoverable evidence, or subject to their own retention laws. Campaigns and especially officeholders need to understand that a text isn't as ephemeral as it feels, and that good record habits protect you on multiple fronts.
When do texts become public records?
It depends on the sender and the context. Communications by government officials conducting public business can be subject to public-records and open-records laws, even when sent by text on a personal device, and many jurisdictions have retention requirements for official communications. A campaign committee is different from a government office, but candidates who also hold office, and official government accounts, have to be mindful that texts about public business may be disclosable. The line between campaign and official capacity is exactly where people get tripped up.
What retention rules apply?
Several layers can stack:
- TCPA record retention, keeping consent, sends, and opt-outs, for at least four years. See recordkeeping.
- State opt-out retention, which can run longer, up to ten years in states like Virginia.
- Public-records and open-records laws, for officials conducting public business.
- Litigation holds, where texts become discoverable evidence in a dispute.
The practical upshot is that campaigns and officials should assume texts are retained and potentially disclosable, and keep them accordingly.
Why does this protect you twice?
Because clean, durable records are both your TCPA defense and your public-records and litigation posture. A program that captures and retains its texting records well is prepared for a consent complaint, a records request, and a litigation hold all at once. The habit that keeps you compliant with the TCPA, log everything, keep it durably, is the same habit that keeps you clean if a text becomes a public record or evidence. Good records are rarely a burden and often a lifeline.
Frequently asked questions
Are campaign text messages public records?
It depends on the sender and capacity. A campaign committee's texts generally aren't public records, but officials conducting public business by text can be subject to open-records and retention laws, even on personal devices.
How long should you keep text records?
At least four years for TCPA purposes, longer where state law requires (up to ten years in some states), and per any public-records or litigation-hold obligations. Assume texts are retained and potentially disclosable.
Why does record retention matter beyond the TCPA?
Because the same records that defend a TCPA claim also cover public-records requests and litigation holds. Clean, durable records prepare you for a consent complaint, a records request, and discovery at once.
Keep reading: recordkeeping for text compliance and TCPA lawsuits against campaigns. For the rules, see the FCC.
This is general information, not legal advice. Public-records rules vary by jurisdiction, current as of the date above; consult counsel.