The Problem with Paperless: Authentication of Online Legal Documents Is Critical, Otherwise They Are Unofficial and Open to Potential Sabotage

Article excerpt

Marcus Hochstetler, the director of the King County Law Library in Seattle, Washington, is on the front lines of a growing problem--state level authentication of legal documents.

"Increasingly, more cases are filed in State courts and almost every state has a version of their statutes online but, in a growing number of cases, they have stopped sending free printed copies to libraries," says Hochstetler. Since this is certain to continue, the electronic format of these primary sources upon which judges base their opinions, and the public interprets the law, needs to be authenticated. Otherwise, the documents are unofficial and open to potential sabotage.

State level authentication of legal resources is critical because a significant number of states claim that their online legal resources are official, but none are in fact authenticated.

So who else cares about authentication of online legal resources besides Hochstetler? For starters, the Government Printing Office (GPO) has already acted by placing digital signatures on all public laws starting with the 110th Congress and the 2009 Federal Budget posted on GPO Access. And the National Conference of Commissioners on Uniform State Laws recently announced that it will establish a Study Committee on Online Authentication of Legal Materials in August to investigate the issues and discuss the feasibility of a uniform law or model act.

AALL Conducts Survey

On April 2007, the American Association of Law Libraries (AALL) along with 50 delegates from the judiciary, legal community and state governments held a National Summit on Authentication of Digital Legal Information. As a follow up to the Summit, AALL conducted a 50-state survey investigating which government-hosted legal resources on the Web are official and capable of being considered authentic. Six sources of law were included: state administrative codes, registers, statutes, session laws, and supreme and appellate court opinions. The Authentication Survey analyzed authentication technologies or practices that each state is either considering or currently using. It also examined the chain of custody, a data handling procedure used in creating online resources.

So what did the survey find? An online official legal resource should possess the same status as the print version. However, many of the online resources now replacing print official legal resources completely fail in their role as the sole official statement of the law because, even though the technology is available, they aren't authenticated. Beyond this startling finding, the survey points to a critical need for the legal community to work with their state legislators and government officials torevise existing laws and administrative policies ensuring that each state's publicly available legal resources on the Web are authoritative and reliable.

Defining "Authentic"

The very digital technology that makes it possible to offer legal resources online also enables people to alter or illegally copy them. The authentication level of an electronic document is dependent on provenance, the documented history of the object's ownership and location; and permanence, how long users can count on its continuing presence. A publication's integrity and chain of custody, documented evidence of its creation, are determined by whether it is "authentic" and "official." "Authentic" is defined as content that is verified by a government entity to be complete and unaltered when compared to the original version approved or published by the content originator. "Official" means content that is approved, contributed by, and harvested from an official source in accordance with particular specifications.

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The most commonly used encryption-based authentication methods are digital certificates, signatures, watermarking, and public key infrastructure. Digital certification and watermarking utilize integrity marks, such as an emblem or logo, often used in conjunction with a digital signature. …