An Introduction*
David Badertscher
How trustworthy are state-level primary legal resources on the Web? The American Association of Law Libraries (AALL) published the State-by-State Report on Authentication of Online Legal Resources (Authentication Report) that answers this very important and timely question. The comprehensive report examines and draws conclusions from the results of a state survey that investigated whether government-hosted legal resources on the Web are official and capable of being considered authentic. The survey was conducted by the Access to Legal Information Committee of AALL. For a quick overview, the Authentication Report’s Executive Summary provides an excellent introduction to some of the underlying issues and facts surrounding the pressing and timely issue of the authenticity of state primary digital legal materials.
The Authentication Report follows the publication in 2003 of AALL’s State-by-State Report on Permanent Public Access to Electronic Government Information that researched and reported what, if anything, state governments were doing to meet the enormous challenges of ensuring permanency and public accessibility of government information on the Web. The Permanent Public Access Report raised national awareness and encouraged states to take steps to ensure permanent public access to electronic state government information. As a result, several states have enacted legislation requiring permanent public access.
The trustworthiness of online legal resources is fundamental to permanent public access and is inherently a matter of great concern to the legal community. Thus, AALL undertook its investigation of the authenticity of online legal resources in 2006-2007 as an important follow-up and corollary to the Permanent Public Access Report.
The Authentication Report presents the findings of a survey that targeted six sources of law: state administrative codes and registers, state statutes and session laws, and state high and intermediate appellate court opinions. The summary answer to the question of the trustworthiness of these online legal resources is that a significant number of state online resources are official but none are authenticated or afford ready authentication by standard methods. State online primary legal resource are, therefore, not sufficiently trustworthy.
AALL’s Authentication Report raises concerns that must be addressed by the states, both as high-level policy decisions and practical matters. AALL believes that the Authentication Report will serve as a guide for states to correct smaller-scale deficiencies in their current dissemination of online legal resources and to initiate long-term progress toward the all-digital legal information environment that will enhance each state’s fundamental interaction with its citizens.
The Authentication Survey’s findings indicate that while some states are beginning to address issues discussed in the AALL Authentication Report, the government publishers of electronic legal information have not been sufficiently deliberate in their policies and practices to ensure that information obtained from their websites can be relied upon and can be verified to be complete and unaltered when compared with the version approved or published by the content originator. Such verification is an essential prerequisite if digital legal resources are to be trustworthy and truly merit both official and authentic status.
Achieving an acceptable level of authenticity and trustworthiness requires appropriate authentication procedures. Standard methods of authentication may include encryption, digital signatures and public infrastructure but other methods to adopt best practices are also possible. Certification and other types of formal endorsement of legal resources are a vital link in the “chain of custody” involved in dissemination, maintenance, and long-term preservation of digital legal information. That chain may contain a link to computer technologies that guarantee the very copy delivered to one’s computer screen is uncorrupted and complete or it may be part of other archival methods.
The authentication survey and report are not the only steps AALL has taken to address this issue. It convened a National Summit on Authentication of Digital Legal Information near Chicago where approximately fifty delegates from the judiciary, the legal community, state governments, and interested organizations, all of whom share AALL’s concern about ensureing the authenticity of digital legal information, participated in discussions about the Authentication Report findings and explored legal and technological solutions to ensure that state online legal resources are authenticated and trustworthy.
As mentioned earlier, the state survey upon which the findings in the Authentication Report are based, was conducted by the Access to Legal information Committee of AALL. That Committee is continuing to help address these issues and concerns in a variety of ways, including developing guidelines for ensuring greater authenticity of information on government websites and continuing to monitor the progress of state-by-state efforts related to address issues and concerns noted in the Authentication Report. To further these efforts AALL and its members would like to build alliances with states to help overcome legislative and technical obstacles to providing residents of each state with permanent access to reliable official legal information on the web.
________________________________ * This Introduction was written by David Badertscher on behalf of the AALL Access to Electronic Legal Information Committee (AELIC). Members of AELIC for 2007-2008 are: Joan Shear (Chair), Pauline S. Afuso, David G. Badertscher, Thomas R. Boone, Jane Edwards, Emily M. Janoski-Haehlen, Ann H. Jeter, William D. Rees, Karen W. Silber, Steven P. Anderson (Board Liaison) and Mary Alice Baish (Staff Liason). Special thanks to Karen Silber for reviewing a draft of the above material and offering editorial suggestions which have been incorporated into this posting.