Online Legal Resources: Defining “Authentic” and “Official” in the Digital Age Online Legal Resources: Defining “Authentic” and “Official” in the Digital Age Sarah G. Holterhoff LLAA Meeting, Spring 2008 Birmingham, AL Sarah G. Holterhoff LLAA Meeting, Spring 2008 Birmingham, AL

How trustworthy are state-level primary legal resources on the Web?How trustworthy are state-level primary legal resources on the Web? What is the problem with non-authenticated and “unofficial” legal information?What is the problem with non-authenticated and “unofficial” legal information? Are federal & state governments designating their online primary legal resources as official? What are they doing to authenticate them?Are federal & state governments designating their online primary legal resources as official? What are they doing to authenticate them?

As the AALL Strategic Directions state: One of the core values of AALL is “equitable and permanent access to legal information.”

Government information: A valuable public good Comprehensive Authoritative & reliable Accessible to all “Official” & designated as such by statute or rule Preserved—permanently accessible

Managing the Life Cycle of Electronic Information—taking responsibility for: CreationCreation Finding toolsFinding tools Permanent public accessPermanent public access AuthenticationAuthentication PreservationPreservation

AALL Assessments of current situation: 2003 Report of 50-State Survey on Permanent Public Access to Electronic Government Information 2007 Report of 50-State Survey on Authentication of Online Legal Resources.

Goal of 2006 State-by-state Authentication Survey To determine which states, if any, had adopted website versions of their primary legal resources as official and/or authentic.

Survey considered 6 online state legal sources: Session laws Statutory code Administrative register Administrative code Opinions of highest state court Opinions & other information from state’s intermediate appellate courts

What is an official source? One which is mandated or approved by statute or rule.

What is an official online source? One which has the same status as the official print source.

What makes an official print source also authentic? Fixed nature of print Multiple copies Wide distribution

Why is authentication important? The disappearance of print official legal resources without an authentic online substitute threatens trustworthiness of the resources.

Digital content…vulnerable to: Lapses in management and control Data corruption Tampering

What is needed to authenticate an online official source? Content verified to be complete and unaltered Bears a certificate or mark Protected by encryption or digital signature technology

U.S. Government Printing Office Defines authentication as content verified to be complete and unaltered when compared with original version

U.S. Government Printing Office Authentic text should bear a certificate or mark Use technology such as encryption, digital signatures, PKI, and “chain of custody”

2006 AALL State-by-State report: 6 key findings

Key Finding # 1 States are discontinuing official print versions of primary legal resources and substituting online official legal sources.

5 states (Alaska, Indiana, New Mexico, Tennessee and Utah) have declared online versions of one or more of their primary legal resources as a substitute for the official print source. their sole official versions of these resources.These are their sole official versions of these resources. None are authenticated and only Utah requires permanent public access.

Key Finding # 2 Ten states & the District of Columbia have designated one or more of their online primary legal resources (primarily regulatory registers and administrative codes) as official.

Key Finding # 3 The online primary legal sources of some states have “official traits,” but evidence of their status is conflicting.

8 states have official traits but… Word “official” is not always used. Word “official” may be used, but the online resource isn’t considered as completely official as print version. Official status may be noted with no indication why (e.g., statutory authority or court rule).

Key Finding # 4 States have not been sufficiently deliberate in their policies and practices. Have not acknowledged important user needs. Have not considered the issues raised when their only legal resources are not authenticated.

Association of Reporters of Judicial Decisions (ARJD) 2007 Statement of Principles: Official On-line Documents Reinforces conclusions of AALL’s authentication report

AALL Recommendations 1. Provide a clear statement of the official status and source of authority for same. 2. Use the designation official with care, to avoid confusion. 3. Titles for online and print should be consistent.

AALL Recommendations 4. Identify print official sources and tell where to find them. 5. Resolve and communicate differences in currency between print and online. 6. Identify source of data, its “chain of custody” and relevant processes.

AALL Recommendations 7. Prominently display any representations and disclaimers, and provide the specific scope of such. 8. Develop policies, procedures and rationales. 9. Address official status, authentication & permanent public access for online resources.

Key Finding # 5 No state’s online primary legal resources are authenticated or afford ready authentication by standard methods.

Minnesota, Ohio, Vermont, and Virginia have begun to address the problem. Alabama and seven other states (Arkansas, Connecticut, Maryland, Montana, Ohio, South Carolina, & Tennessee) view authentication as a concern that warrants attention.

Key Finding # 6 Some states have provided for permanent public access (PPA) to one or more of their online primary legal resources.

Since the 2003 AALL report, 9 states have provided for permanent public access for one or more of their online primary legal resources: AK, CA, IN, MN, MT, OH, PA, TX and UT

Conclusions Online legal resources are increasingly the sole official published source. Official status requires authentication procedures (encryption, digital signatures, PKI, “chain of custody” information).

Goal: For online legal resources to be as trustworthy as those in print format.

Authentic Legal Information in the Digital Age: A National Summit Renaissance Schaumburg Hotel & Convention Center Schaumburg, IL April 20-21, 2007

National Summit on Authentication 50 invited delegates from ABA, NCSL, NCCUSL, state courts, state archives & legislative IT services & federal govt. Sessions on 2006 AALL report & findings, technological and legal challenges, building alliances.

Progress since National Summit U.S. Government Printing Office has authenticated: public and private laws of the 110th Congress 2009 Budget of the U.S. Government

Progress since National Summit Uniform Law Commission (NCCUSL) has approved a study committee on authentication of online state legal materials—first step toward a possible uniform law or model act.

Link to Authentication webpage

Your Help Is Needed in Alabama To form alliances, educate, promote solutions, & provide grassroots support. To work together to promote solutions & overcome technological obstacles To seek legislative changes to ensure digital authentication & permanent public access for online primary legal resources.

What’s the Urgency? Confidence and trust in the legal community Disclaimers/warnings on websites

Animal Farm: a cautionary tale 7 Commandments were painted on the barn wall but they kept changing. Over time, 6 of them disappeared, and the remaining commandment seemed to have changed…