The following guest post is by Butch Lazorchak, a digital archivist at the Library of Congress. It is cross posted on The Signal.
Digital technology makes documents easy to alter or copy, leading to multiple non-identical versions that can be used in unauthorized or illegitimate ways. Unfortunately, the ease of alteration has introduced doubt in users’ minds about the authenticity of many of the digital documents they encounter.
Lawyers are understandably concerned with issues of authenticity, but librarians and archivists bring value in that the archival processes of provenance and authenticity have long helped their patrons accept the authority of documents. These processes can be readily applied to digital materials, and if the approach can be compelled through the force of law, all the better.
The National Conference of Commissioners on Uniform State Laws (better known as the Uniform Law Commission) took up the issue of a possible uniform law on the authentication of online legal materials in early 2008. It wasn’t easy, but by focusing on an outcomes-based, technology neutral approach, the ULC was able to bring the Uniform Electronic Legal Material Act (UELMA) to approval at the ULC annual meeting in July 2011.
While not proscribing any particular preservation or authentication method or technology, the law establishes a digital preservation framework for official electronic legal materials moving forward.
If legal material defined by the act is published only electronically it must be designated “official” and meet the requirements of the act. If there is a print version of the legal material, an official publisher may designate the online version “official,” but the requirements of the act to authenticate, preserve, and provide access must be met. Once designated “official,” the Act requires the legal materials be:
- Authenticated, by providing a method to determine that it is unaltered;
- Preserved, either in electronic or print form; and
- Accessible, for use by the public on a permanent basis.
Once the law is implemented in a state, entities that had previously been neglectful of their authenticity and preservation responsibilities will be required to address them, jump-starting digital preservation operations nationwide. This will support the emergence of a robust marketplace and common practices that will enable increased interoperability of digital information and shared methods for preservation across the country.
The California Office of Legislative Counsel published a white paper in December 2011, Authentication of Primary Legal Materials and Pricing Options (PDF), that discusses five methods of authenticating primary legal materials in electronic format and their associated costs under an UELMA implementation. The sound guidance in the report undoubtedly helped broaden consideration of the Act.
There’s been even more recent activity. Twelve states introduced the law during 2013 sessions, and two, Minnesota and North Dakota, have enacted it, joining California and Colorado (the first). You can track the status of UELMA enactment on the ULC’s status map as well as in the American Association of Law Libraries’s 2013 bill tracking report (PDF).
Even if not enacted, the law stimulates discussion on ways to extend open access and preservation even further. For example, California Assemblyman Brian Nestande has proposed legislation that would require the California Code of Regulations to be distributed under a Creative Commons attribution license, allowing anyone to use, distribute and create derivative works based on the material for either commercial or noncommercial purposes. (The full text of the introduced legislation is here (PDF)).
Digital legislative materials are not going to go away. In fact, governments are increasingly moving to a paradigm where their official records are published exclusively in digital form. This is coalescing with an increased recognition of the need to effectively manage all manner of digital records at all levels of government.
This is an exciting opportunity for libraries and archives to be strong advocates for digital stewardship methods and practices. Will we be ready to provide guidance when asked?
Update: In the time between authoring and publishing this post Hawaii also enacted the bill.
This is a very important topic. And especially timely now. Consider, for example, the significance of Obama’s recently-released “birth certificate,” which turns out to have been assembled in Photoshop or similar program.
Excellent, comprehensive article explaining the need for uniform preservation and authentication of digital legal materials. Because UELMA is technology neutral and flexible, the act is a viable solution. Truly 21st Century “democracy preservation.”
A very important topic! In my opinion, its really important that we look beyond knee-jerk “silver bullet” approaches that do not get to the core of the problem.
For something to be truly defensible as authentic in digital form, we need to be able to establish its provenance. This is vitally important for legal materials because they are changing all the time.
IMO, the way to do this, is the the legislative informatics community to borrow some ideas from the world of accounting. In particular, the concepts of ledgers and audit trails.
I wrote a blog post about this some time ago. “What Lawyers need to learn from accountants”: