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Lawyers doing research know all too well about the unreliability of online resources, and the American Bar Association Standing Committee on the Law Library of Congress urges states to adopt a new law to ensure the accuracy of documents posted on the Web.
Twelve states have enacted the Uniform Electronic Legal Material Act, which requires them to preserve and provide trustworthy access to official electronic government information, including state session laws and codes. The law makes it easier for states to share reliable information and raises the stakes for transparency and accountability in the information age.
The general assemblies in California, Colorado, Connecticut, Delaware, Hawaii, Idaho, Illinois, Minnesota, Nevada, North Dakota, Oregon and Pennsylvania have approved the new law, which allows users to “verify the trustworthiness of the legal material.” It does not require a particular preservation or authentication method or technology, but a framework for the future of official electronic legal materials.
Based on the act, official electronic legal materials must meet three standards. Materials must be unaltered (authenticated), available in either print or electronic form (preserved) and available to the public on an unlimited basis (accessible).
“Lawyers want what they rely on to be absolutely accurate. It’s too important,” said Sheila Slocum Hollis, chair of the Standing Committee on the Law Library of Congress. “We want to make sure it is the signed, sealed and delivered version of the document,” said Hollis, referring to court decisions made by states.”
Hollis said that with the enactment of UELMA, states can rely on the accuracy of documents from other states that have passed the act. “Any state that passes this act is promising another state that what they’re getting is the authentic document,” Hollis said.
In 2015, the act was introduced in four additional states: Maryland, Massachusetts, New York and Texas. The Uniform Law Commission maintains a status map of the act.
The American Association of Law Libraries has urged states to adopt UELMA as well. In 2007, they generated a state-by-state report on the authentication of online legal resources. The report found that, “a significant number of the state online legal resources are official but none are authenticated or afford ready authentication by standard methods.” This report provided the foundation for the UELMA study committee in 2008 and eventually the drafting committee in 2009.
In late 2015, Hollis wrote a letter on behalf of the ABA to the Uniform Law Commission in support of UELMA. “Enactment of UELMA will harmonize the authentication of official online legal material across jurisdictions by providing a basic framework that provides entities and the general public with a means to confirm the trustworthiness of the electronic material they are using,” Hollis wrote.
The standing committee is calling on lawyers to encourage the legislation in their state and to work toward enacting it in the next legislative session of each state’s general assembly.
Methods of authentication
UELMA does not require states to abide by a certain preservation technique or technology authentication method, which gives them liberty to try new things.
Lucy Thomson, past chair of the ABA Section of Science & Technology Law and an ABA adviser to the ULC, worked to develop the framework for the act. In the early stages of the act, Thomson, who is a lawyer and a technology security engineer, provided legal and technical advice.
“It’s critically important that the materials posted by states are accurate and that there is an assurance that what’s posted online is the ‘real thing,’” Thomson said.
Former ABA Executive Director Bob Stein was president of the ULC when UELMA was approved in the summer of 2011.
Stein spoke about the act during the ABA House of Delegates’ 2012 Midyear Meeting, where the resolution to support UELMA was approved.
“It’s important because a lawyer or anyone else needs to know what the law was on a particular time and date. So what this statute does is provides a way for determining what the law was on a date and authenticates that it was in fact the law,” said Stein, now a professor of law at the University of Minnesota Law School.
Minnesota recently adopted the UELMA. Michele Timmons, revisor of statutes for the state of Minnesota and former chair of the UELMA Drafting Committee, said one of the main concerns that states have about adopting UELMA is the cost.
“The authentication isn’t free,” Timmons said. “The long-term preservation of the electronic material, it’s hard to foresee exactly what the cost will be on that because a lot of that is still developing. It’s hard to know -- will a PDF format be something we can read 10 years from now, 20 years from now, or will we have to migrate into a new format? None of us have a crystal ball to know what will happen in the future.”
Timmons, who now chairs the ULC Enactment Committee, which is charged with helping states to implement the law, said some of the bigger states, like California, will probably use an Adobe solution and buy commercial software, as the U.S. Government Publishing Office did.
She said before UELMA, Minnesota officials scanned and made searchable statutes dating back to territorial statutes of 1851. Minnesota became a state in 1858. The state has PDFs of all historical statutes. Timmons sought grants to hire a company to perform the computer programming and scanning. They scanned the session laws back to 1849.
“I became interested in providing this historical material. Then I thought how are we going to keep that up for the future? That’s when I thought about authentication,” Timmons added.
To date, Minnesota uses a secure technology, just like a bank does on its website. It has a certificate that identifies the site as the official Office of the Revisor of Statutes site. The revisor’s office is responsible for everything from preparing draft legislation to editing and publishing Minnesota’s rules, statutes and laws.
In 2012, the Office of the Revisor of Statutes for Minnesota published a white paper, “Prototype for Authentication of Official Electronic Record and Pricing,” that details how they developed an in-house solution for authentication that satisfies UELMA requirements.
Timmons added that another impediment to states’ implementation of the act is the fear of the unknown.
“It’s difficult to have a crystal ball and see into the future for purposes of saying we have to preserve these things forever,” Timmons said. “But that is kind of the reality: what more important information is there in a state than its laws, statutes and administrative rules? I know from the scanning work we’ve done how important those materials are.”
Timmons said weeks after her office scanned in the statutes, they received two inquiries from lawyers alerting them that some of the statutory materials from 1891 were missing.
“So it gives you an idea that you think this older material is no longer of any use to anybody and the reality is, it absolutely is,” Timmons added. “The law we are passing is probably going to be relevant to somebody 100 years from now. The reality is that we need to find a way to preserve that somehow and make that available to future generations.”