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 Electronic Legal Information Committee of AALL. The principal authors and editors of the comprehensive report were Richard J. Matthews, Editor in Chief of the 2005-2006 Access to Electronic Legal Information Committee and Mary Alice Baish, Executive Editor, AALL Washington Affairs Office; volunteer authors were responsible for sections within the comprehensive report devoted to individual states. The survey and comprehensive authentication report could not have been completed without their efforts.
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.
Hon. Herbert B Dixon, Jr, who sits on the Superior Court of the District of Columbia was one of the delegates to the National Summit. He has since written an article “The Lack of Effort to Ensure Integrity and Trustworthiness of Online Legal Information and Documents,” (see 46 The Judges’ Journal 42-45 (Summer 2007)) in which he cautions that ” as more and more courts and agencies institutionalize the use of electronic filing and the maintenance of records, the courts will need to address certain lurking issues to ensure the integrity and trustworthiness of legal documents. Judge Dixon concludes his article by writing: “..The AALL study [Authentication Report] is convincing that the time is now to implement these steps to ensure the integrity and trustworthiness of online legal information.”
In February 2008 the Uniform Law Commission informed AALL that it has approved the creation of a new Study Commission on Online Authentication of Legal Materials to investigate the issues and discuss the feasibility of a uniform law or model act on digital authentication. The chair and members of the new study committee will be named shortly after the NCCUSL annual meeting in August.
As mentioned earlier, the state survey upon which the findings in the Authentication Report are based, was conducted by the Access to Electronic 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.
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David G. Badertscher is the Principal Law Librarian, New York Supreme Court Criminal Term, First Judicial District and a member of the Access to Electronic Legal Information Committee of AALL.
This article has also been published by LEXOLOGYat http://www.lexology.com/library/detail.aspx?g=de5e5391-7100-4686-9323-4ecd40176bf4