Down the Rabbit Hole: Establishing Uniform Authentication and Preservation Standards for U.S. Legal Materials

A hat tip to Rob Richards at the Legal Informatics Blog for alerting us that the National Conference of Commissioners on Uniform Laws (NCCUSL) will meet on July 7th to consider adopting The Uniform Electronic Materials Act (the Act).  As Rob notes in his post, the Act aims to “establish uniform legal standards for the authentication and preservation of U.S. state legal information in digital formats.” The Act also touches on issues around accessibility, noting its importance in helping create informed citizens.

After having a chance to read up a little bit more on the Act, there were a few things I wanted to note.

1. “Legal materials” as defined in the Act include state constitutions, session laws, codes, agency rules, case law and court rules.

2. “The Act applies to all legal materials in electronic record that is designated as official.”  But what’s official?  The Comments section of the most current draft try to deal with this question by noting:

“This act only applies to legal material published by the official publisher [. . . ] Many states contract with commercial printers for the production of their legal material, and under this act states can continue to contract out the production of their legal material as desired. [. . . ] However, a commercial publisher cannot serve as official publisher of legal material for the purpose of this act.”

3. If an official publisher only publishes material in electronic format they need to designate it as official.

4. The Act is light on technical specifics and leaves the choice of what authentication and preservation technologies to use up to individual states.

5. And last, here is the head scratcher for me, as it runs smack into the stated goal of accessibility.

The Act applies to legal materials that are in electronic form.  However, “An official publisher of legal material in an electronic record that is or was designated as official [. . .] shall provide for the preservation of the record in an electronic form or a form that is not electronic.”  As such, it’s noted in the comments that, “Legal material preserved under this act must be ‘reasonably available’ to the general public. Reasonable availability does not necessarily mean that the information must be accessible around the clock, every day of the year.”  Does this apply even if the preserved data is in electronic form? I’m not sure, but I think there’s this series of tubes that states might be able to use which actually might make electronic material accessible, “around the clock, every day of the year.”

So what to make of all this? The goals are admirable – who doesn’t want to help authenticate and preserve accessible electronic official legal materials? (Courtney, put your hand down.)  And it’s great for some states, like Illinois, that have decided to pull the plug on print and take over the duties official publisher of their electronic case law, but I’m not so sure about about other states that are tied to commercial publishers.  If someone has more knowledge about all this, and wants to help elaborate on it more, we’d love to hear from you!

Additional Resources

Uniform Electronic Legal Material Act – Resources & Materials

Study Committee Report, April 30, 2009

Uniform Electronic Legal Material Act – Draft For Approval 2011

Uniform Electronic Legal Material Act – Annual Meeting Memo 2011 – Issues Memorandum for 2011 Uniform Law Commission Annual Meeting