Can You Trust Law Online? a 2012 UELMA Update
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.
The focus of UELMA on having a single “official” publisher strikes me as two steps backwards. Today, in many states, litigants have a variety of practical sources for some of these materials, many of which can be annotated or add other features. To be sure, they are not the “official” source. But the variety begets innovation and public access.
If the cost of having a signature-enforced authenticity is locking down the law to a single private publisher for another generation, that seems far too dear. It must surely be the rare case where some inauthentic state statute has (successfully) fooled and confounded a court. Isn’t the better answer to have reliable free and public versions of the law — available to those courts and litigants alike — rather than a single publisher’s version that many litigants will not have access to?
This could be achieved by requiring that any publisher using this digital signature to bless law as “official” dedicates that portion so signed to the public domain. (Arguably, it is already in the public domain. But the publishers seem to disagree.) This would provide a consistent and reliable platform for innovation and public access, by commercial publishers, researchers, and libraries alike. Today, many free or low-cost sources of law must rely on scrapers or other inconsistent methods of accessing the original text. A digital-signature requirement, depending on how implemented, could make their job easy or impossible. I’m afraid the current UELMA threatens the latter.
Response to post 1-14-2013
The UELMA requires a state to be the official publisher so that the state is responsible for ensuring that official legal material is trustworthy and to provide permanent public access to it. UELMA does nothing to prevent other publishers or users to add value. It also does not prevent states from publishing in multiple formats. UELMA is not “locked down” – the Act merely says that the state be the official publisher. UELMA does not affect contractual relationships with private publishers.
Some courts don’t accept electronic versions if not authenticated. Some courts, such as the Supreme Court of the United States, always cite to print unless the material is available only in electronic form. We are quickly moving to an electronic world, however, and online legal material must be official and as authentic as printed material for those who need it.
Barbara Bintliff described the origins and purposes of the UELMA” “The UELMA was drafted in response to a request from the American Association of Law Libraries(AALL), following the AALL’s 2007 National Summit on Authentication of Digital Legal Information. The purpose of the Summit was to bring national attention to the issues surrounding the rapid rise in the number of states publishing primary legal information resources electronically and, in some cases, cancelling print resources and publishing legal information only in electronic format. Foremost among the issues were ensuring the trustworthiness of online legal resources and preserving the electronic publications to provide for continuing accessibility. “
At the federal level the United States Government Printing Office (GPO) has become a trusted source of official, authentic legal material. GPO provides authenticated PDFs in FDsys, but also provides access to XML, such as the new XML of House bills . GPO and the states that have adopted UELMA can be used as models for providing citizens with trustworthy and easily accessible online legal information in a variety of formats.
Now that many state legislatures are back in session, new UELMA bills already have been introduced in the following states:
Connecticut — SB 235
Hawaii — SB 32/HB 18
Massachusetts — HB 38
North Dakota – HB 1129
The American Association of Law Libraries (AALL) just posted a Progress Report on UELMA in 2013. The UELMA is now progressing through six state legislatures. You can follow its progress on the AALL’s UELMA Bill Tracking Chart. at http://www.aallnet.org/Documents/Government-Relations/UELMA/uelmabilltrack2013.pdf .
UELMA has been introduced in two more states – Illinois and Oregon. It is now working its way through eight state legislatures.
UELMA was signed into law by Minnesota’s Governor Mark Dayton on March 15, 2013.
UELMA is now the law in five states, having been enacted in North Dakota on April 8 and signed by Governor Abercrombie in Hawaii on April 11. Hawaii was the first state to include judicial information in its coverage.
UELMA is also the subject of a current blogpost by Butch Lazorchak on the In Custodia Legis blog of the Law Library of Congress at http://blogs.loc.gov/law/2013/04/official-authenticated-preserved-and-accessible-the-uniform-electronic-legal-material-act/?ll_f0449 .