BILL ANALYSIS Ó
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SENATE COMMITTEE ON RULES 2011 - 2012 Regular Session
Senator Darrell Steinberg, Chair
Staff Analysis
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Hearing: April 25, 2012 Fiscal: yes
Urgency: no
BILL NO: SB 1075
AUTHOR: Committee on Rules
AMENDED: As introduced
SUBJECT : The Uniform Electronic Legal Material Act.
DIGEST : This bill would adopt the Uniform Electronic
Legal Material Act, which provides requirements for the
authentication, preservation, and security of electronic legal
material, as defined. This bill would designate the
Legislative Counsel Bureau as the official publisher for
electronic legal material.
ANALYSIS : In 2011, the National Conference of Commissioners
on Uniform State Laws (NCCUSL) recommended that states adopt
the Uniform Electronic Legal Material Act (UELMA). SB 1075
contains that proposal and provides an outcomes-based approach
for states in their management of online legal material.
UELMA has been introduced in six states thus far, and
currently every state maintains an online version of their
codes.
Few states have designated their government-maintained online
material as official, and even fewer have a system for
authentication. (The Council of State Governments, Public
Access to Official State Statutory Material Online, (Sept.
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2011) p.1.) Individuals who wish to use official,
authenticated material must therefore purchase it, consult
official printed sources in libraries, or pay to use popular
commercial online publishers of legal text such as Lexis or
Westlaw.
This information is available at the Legislative Counsel
Bureau-maintained website, www.leginfo.calgov . There is no
"official" online version of the statutes or codes and no
single state entity serves as the digital clearinghouse for
electronic records. The Secretary of the State is the
custodian of all acts and resolutions passed by the
Legislature, but does not maintain an official electronic
version of California's laws. To better adapt to rapidly
changing technology, UELMA provides an outcomes-based
approach, which identifies standards and goals, but not the
procedures adopting states must use to manage electronic legal
material.
SB 1075 continued
This bill would enact UELMA in California to provide assurance
to end-users that the online legal material published by the
LCB is as reliable as traditional, printed law materials.
This bill would designate the LCB as the official publisher
for electronic legal material in California, and require all
online legal material to be authenticated, preserved, and
accessible by the public.
EXISTING LAW : Existing law establishes, requires, and
provides the following:
Establishes the LCB and proscribes activities and
conduct of the LCB. (Gov. Code Sec 10200 et seq.)
Provides that matters submitted to LCB that have not
become public record are confidential, unless otherwise
instructed by the person bringing the matter before the
LCB. (Gov. Code Sec. 20308.)
Requires the LCB to make the California Codes and
statutes and the California Constitution available to the
public in electronic form. (Gov. Code Sec.
10248(a)(8)-(10).)
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Requires the LCB to maintain and operate an
information system in order to make information, as
specified, available to the public by means of access by
way of the largest nonproprietary, nonprofit cooperative
public computer network. (Gov. Code Sec. 10248(b).)
Provides that any electronic public access shall be
in addition to other electronic or print distribution of
the information. (Gov. Code Sec. 10248(f).)
THIS BILL :
Defines the following terms: "electronic material,"
"legal material," "official publisher," and "record."
Designates the LCB as the official publisher for
electronic legal material.
Requires that the official publisher must ensure the
accuracy of the record, provide for backup and disaster
recovery of the record, and ensure the continuing
usability of preserved electronic legal material.
Provides that where an official publisher publishes
legal material only in electronic form, the material must
be designated as official, and the legal material must be
authenticated, secured, and preserved.
Provides that where an official publisher publishes
legal material in an electronic record and in a record
other than electronic form, the electronic legal material
may only be designated as official if the publisher
authenticates and preserves the electronic record.
Specifies considerations, including the best practices
of other official publishers and states, which official
publishers must take into account in implementing UELMA.
Becomes operative on July 1, 2015.
COMMENTS : In the digital age in which we live and given the
budget constraints many states are facing, official documents
are being published electronically without focusing on the
authentication, preservation, and public accessibility of
those materials. UELMA, through the passing of SB 1075, would
provide for the authentication, preservation, and public
access of that legal material. Because the law would be
uniform, judges, lawyers, and others who access the law
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electronically will be able to rely on those legal materials
as authentic in California and, similarly, would have the same
assurance in those states that have also adopted UELMA.
SB 1075 addresses a problem that law librarians, lawyers,
legislators, and others have been working on for a long time:
how can state governments ensure that electronic legal
material is actually trustworthy? Examined from outside the
legal context, this concern is familiar - online information
is transitory, vulnerable to hacking and rewritable, all of
which can make individuals understandably nervous while
conduction serious transactions online.
The National Conference of Commissioners on Uniform State Laws
(NCCUSL), which drafted UELMA after extensive discussion and
debate, further defines authentication as providing an
electronic method to establish the integrity of the document,
demonstrating that the information has not been altered during
the transfer between official publisher and end-user.
Upon the enactment of SB 1075 , LCB will be able to choose
methods of authentication. Currently, California's online
database of electronic legal material instructs users to
verify the authenticity of information elsewhere. Under SB
1075, official publishers would be able to communicate the
electronic legal material's official and authenticated status
through their websites. For example, when a system for
authentication is adopted, the LCB could decide to eliminate
the accuracy disclaimers on www.leginfo.gov , inserting instead
information of state certification or formal endorsement.
Under this bill , California would have discretion to decide
what electronic legal material is official and must therefore
be preserved, and the system by which to preserve it. If
legal material is preserved in print form, reliable procedures
are well-established and therefore not specified in the act.
If legal material is preserved electronically, however, this
bill would require certain outcomes. The state would be
required to: provide backup and disaster recovery of the
records; ensure the continuing usability of the material; and
ensure that the material is reasonably available for use by
the public on a permanent basis. The method by which
California achieves these goals is not restricted, but, under
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this bill, must be informed by best practices of other
jurisdictions. Currently, best practices call for the
existence of multiple electronic copies that are
geographically and administratively separated, for backup
copies of electronic records to be made periodically, and
backups must contain the original material plus subsequent
changes to electronic legal material. (National Conference on
Commissioners on Uniform Laws, Uniform Electronic Legal
Material Act, July 18, 2011.)
There is no consideration in implementing SB 1075 to eliminate
the print copies of the California Constitution, the Statutes
of the State of California, or the California Codes."
Accordingly, at this time, legal material will be preserved
both online and in traditional print form.
ARGUMENTS IN SUPPORT : The adoption of UELMA with the passage
of SB 1075, establishes California as a leader among states,
understanding that official, electronic legal material must be
authenticated, preserved and made permanently available to the
public. (Council of California Law Librarians.)
The availability of government information online facilitates
transparency and accountability, provides widespread access,
and encourages citizen participation in the democratic
process.
Generally, the Internet is more accessible and user-friendly
than printed legal materials. Many individuals have access to
the Internet whether at home, work, or through their local
public library. Research of printed legal material, on the
other hand, requires a user's physical presence in a law
library, knowledge of the cataloguing system, and is limited
by the library's operating hours.
Budget restrictions in California and other states have also
limited public access to official information and services.
Many of the courts, libraries and other government offices
that house official print versions of legal material now have
reduced hours and staff. Individuals looking for legal
material must then turn to online resources, which still may
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require verification against official print versions,
triggering the logistical problems mentioned above.
Californians have a need for reliable information from other
states as well. Often contract interpretation, lawsuits with
diverse litigants, and legislative research may require
knowledge of out-of-state laws. While all states now have
online versions of their codes, only seven states provide
access to official versions online. (The Council of State
Governments.)
CONCERNS : The American Bar Association, at the 2012 mid-year
meeting, while considering a resolution to approve the Act,
raised concerns regarding UELMA. The American Court and
Commercial Newspapers, Inc. (ACCN), a trade association of
privately-owned journals, was reluctant to accept the
outcomes-based approach in UELMA. The ACCN preferred
definitive standards for states to follow regarding electronic
legal material. The ACCN also objected to online material
being the sole official published version of a document. The
American Bar Association approved the resolution in February
of 2012.
The ACCN's objections were ultimately defeated, but their
concerns highlight the most important feature of the Act:
adaptability. Instead of codifying procedures which may
eventually become outdated, UELMA's outcomes-based approach
allows states to remain flexible when fashioning solutions to
new technological problems. This approach is consistent with
other uniform acts that have been widely adopted by states.
(see National Conference of Commissioners of Uniform State
Laws, Uniform Electronic Transactions Act (1999) Ýwhich has
been adopted by 47 states]; National Conference of
Commissioners of Uniform State Laws, Uniform Real Property
Electronic Recording Act (2004) Ýwhich has been enacted in 27
states/territories and introduced in three more states.].)
SUPPORT : CalTax; Council of California County Law Librarians;
Northern California Association of Law Libraries; San Diego
Area Law Libraries; Southern California Association of Law
Libraries.
OPPOSITION : None received.
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MOTION AND VOTE IN THE JUDICIARY COMMITTEE HEARING ON
04/17/12 :
Do pass, but re-refer to the Committee on Rules,
Recommend Consent.
AYES 5 NOES 0
SENATE COMMITTEE ON RULES - Principal Consultant: Sandy
Wood/651-4153
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