The Uniform Electronic Materials Act (UELMA) is slowly making that trust more of a reality in the United States. The Act was drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL or Uniform Law Commission) and was approved by them in July of 2011. As of now it has been adopted by two states, Colorado and California, and is under consideration in four more. The Uniform Law Commission’s summary webpage on the Act has up-to-date information on the progress of it in the states and much more A good summary of the origins and drafting of it, written by Barbara Bintliff, the Reporter of the Act, can be found on Cornell’s Legal Information Institute blog. Also Anna L. Endter has just published an article analyzing the social justice applications of UELMA: Authentication of Online State Primary Legal Resources as a Social Justice Issue: The Uniform Electronic Legal Material Act and How It Can Benefit Pro Se Litigants, in 31 Legal Reference Services Quarterly, 293-311 (2012).
Though UELMA is only five pages long, it covers a range of options for states that have already or plan to designate their online legal materials as official. The Commission aptly described the purpose of the Act on their webpage: “The Uniform Electronic Legal Material Act establishes an outcomes-based, technology-neutral framework for providing online legal material with the same level of trustworthiness traditionally provided by publication in a law book.” The Act itself covers three critical areas: authentication, preservation and public access.
Sections 5 and 6 of the Act cover authentication. Section 5 provides that the publisher of legal material designated as official must authenticate that material. Additionally in order “to authenticate an electronic record, the publisher shall provide a method for a user to determine that the record received by the user from the publisher is unaltered from the official record published by the publisher.” The specific method to be used is not mandated in order to let states adopt appropriate technology suited to their situation and to allow for changes over time as the technology matures and improves. Section 6 sets up a presumption that any legal material authenticated under section 5 is an accurate copy. Any party contesting that authenticity must prove its case by a preponderance of the evidence.
Section 7 addresses preservation of online legal material by its official publisher. If legal material is preserved in an electronic format the publisher must
(1) ensure the integrity of the record;
(2) provide for backup and disaster recovery of the record; and
(3) ensure the continuing usability of the material.
Again specific methods for preservation are not mandated in order to allow for flexibility as the technology evolves.
Section 8, which mandates public access, seems to me to be weaker than the previous sections. Its short statement that “An official publisher of legal material in an electronic record that must be preserved under Section 7 shall ensure that the material is reasonably available for use by the public on a permanent basis” does not mandate free access and leaves too much leeway to remove material under ‘reasonable’ conditions.
After the Uniform Act was passed some states began to adopt it. First Colorado enacted House Bill 12-1209 which took effect on August 8, 2012. This act covers the Colorado Constitution, session laws, revised statutes and state agency rules, but not judicial opinions. Then California’s governor approved Senate Bill No. 1075 on September 13, 2012, but it will not take effect until July 1, 2015. This Act covers the California Constitution, statutes and codes, but not judicial opinions. Rhode Island introduced H 7750 on February 16, 2012 and it covered the constitution, public laws, general laws, agency rules and decisions and reported decisions of state courts. Minnesota introduced HF 2527 on February 27, 2012, but it appears to have died in the Senate on April 18th. This Act would have taken effect on or before January 1, 2014 and applied to “all legal material in an electronic record that is designated as official under section 3E.04 and first published electronically on or after January 1, 2014.” Connecticut introduced S.B. No. 418 on March 12, 2012, but no action appears to have been taken since May 9th. This bill would take effect on July 1, 2013 and would cover the Connecticut Constitution, general statutes, regulations and reported decisions of the Supreme Court, Appellate Court and the Superior Court. Tennessee introduced SB 2894 on March 21, 2012. The act covers the constitution, public and private acts, Tennessee Code Annotated and agency rules that have the effect of law and would have taken effect on January 1, 2013.
I think this is a good start on the enactment of UELMA by the states, but we still have a long way to go. The Uniform Law Commission is educating states as to the advantages of the Act and many groups, particularly the American Association of Law Libraries, have been mounting grass roots efforts to get it introduced and passed in all states. I plan to follow these issues of authentication, preservation and permanent public access in the U.S. and other countries and will report on them as progress is made.