Legality of Optical Disk: An Update

Article excerpt

Optical disk technology may offer effective solutions to pressing information management problems. Organizations in both the public and private sector continue to explore the feasibility of adopting this technology to meet their own needs.

Some believe that the legal questions regarding this technology may present obstacles to its widespread acceptance. Will records maintained by this technology be admissible in evidence? Can records required by state and federal regulatory agencies be maintained using this technology? Can government agencies use this technology for their own purposes? What legal principles will apply to this technology in countries outside the United States?

Since my last article on the subject appeared in the Records Management Quarterly', a few laws have changed and a few new issues have been raised. At least three states have addressed optical disk in laws affecting records as evidence. A few other states have addressed legal issues regarding the use of this technology by state government agencies.

The legal questions regarding optical disk can be categorized in four distinct areas:

* Admissibility in evidence

* Submission to government agen - cies

* Use by government agencies

* Law in countries outside the

United States

This article provides additional information in each of these four areas.

ADMISSIBILITY IN EVIDENCE

In the United States, two uniform laws clearly establish the basis for admitting records maintained on optical disk systems into evidence: The Uniform Rules of Evidence and The Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA).2 Both laws would admit duplicate records into evidence if they accurately reproduce the original.

The optical disk technology is a duplication technology similar to photocopies, microfilm and facsimile. The four best-known reproduction techniques-photocopy, microfilm, facsimile and electronic image management or optical disk-exhibit the same three characteristics.

  1. Image Capture. A photographic,
     scanning or other process to
     identify and capture the image
     of the original document.
   2. Image Manipulation. A photo
-     graphic, electronic, photostatic
     or other process that transforins
     the captured image into a for
-     mat for storing and reproducing
     the image.
   3. Visible Reproduction. A photo
-     graphic, photostatic, printing, or
     other process that converts the
     manipulated image into a visible
     form.

An optical disk system, for example, utilizes an electronic scanner for image recognition, computer software, memory and optical disk storage for image manipulation and graphic terminals and laser printers to make the image visible. An optical disk system is therefore similar to other reproduction technologies. Like all other reproduction technologies, the image will be manipulated and. converted from one form to another. As long as the final reproduced image accurately reproduces the original, the law of evidence in the United States would allow the visible records produced by any technology to be admissible in evidence.

Most organizations recognize that courts will require paper prints of duplicate records. Even though microfilm would be admissible in evidence in court, few judges will be willing to accept the film itself, even when they are provided with a reader/printer. Instead, they will insist that paper prints be prepared because they feel more comfortable with paper records. USING OPTICAL DISK IMAGES

IN COURT

In a recent court case in California's San Mateo County, records were scanned using an optical disk system and presented to witnesses on computer terminals. Most witnesses were reluctant to identify the documents as the ones they signed, prepared or used. As a result, the court was unable to use records from the optical disk system in evidence. …