BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1075
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          Date of Hearing:   June 26, 2012

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
             SB 1075 (Committee on Rules) - As Introduced:  February 14, 
                                        2012

                                  PROPOSED CONSENT

           SENATE VOTE  :   39-0
           
          SUBJECT  :   UNIFORM ELECTRONIC LEGAL MATERIAL ACT
           
          KEY ISSUE  :  SHOULD CALIFORNIA ADOPT THE UNIFORM ELECTRONIC LEGAL 
          MATERIAL ACT TO ESTABLISH STANDARDS TO ENSURE AUTHENTICATION AND 
          PRESERVATION OF THE STATE CONSTITUTON, STATUTES, AND CODES WHEN 
          SUCH LEGAL MATERIAL IS MADE AVAILABLE ONLINE IN ELECTRONIC FORM?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
           
           With modern advances in information technology, all states now 
          publish their laws, statutes, rules and other legal material 
          online.  According to the author, however, while electronic 
          publication of legal material has facilitated greater public 
          access, it raises novel concerns about the authenticity and 
          preservation of this official information when in electronic 
          format.  This non-controversial bill would adopt in this state 
          the Uniform Electronic Legal Material Act (UELMA), model 
          legislation drafted and recommended for passage by the Uniform 
          Law Commission.  This bill would designate the Legislative 
          Counsel Bureau (LCB) as the official publisher of electronic 
          legal material in California, and would require LCB to develop 
          means for the authentication, preservation, and accessibility of 
          such material.  UELMA provides an outcomes-based approach, which 
          identifies standards and goals, but not specific procedures that 
          states that adopt UELMA must use to manage their electronic 
          legal material.  This bill passed the Senate without any "No" 
          votes and is double-referred to the Assembly Rules Committee.

           SUMMARY  :  Adopts the Uniform Electronic Legal Material Act to 
          ensure the authenticity of California legal material made 
          available to the public online.  Specifically,  this bill  :    









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          1)Defines "legal material" to mean the California Constitution, 
            Codes, and statutes of this state.
           
          2)Designates the Legislative Counsel Bureau (LCB) as the 
            official publisher for electronic legal material in this 
            state.

          3)Provides that where the LCB publishes legal material only in 
            an electronic record, the electronic record must be designated 
            as official, and the legal material in the record must be 
            authenticated, preserved, and made reasonably available for 
            public use on a permanent basis.

          4)Provides that where the LCB publishes legal material in an 
            electronic record and also in a record other than electronic 
            form, the electronic record may only be designated as official 
            if the publisher authenticates, preserves, and makes the legal 
            material reasonably available for public use on a permanent 
            basis.

          5)Requires the LCB to authenticate the legal material in any 
            electronic record that is designated as official, by providing 
            a method for a user to determine that the record received by 
            the user from LCB is unaltered from the official record 
            published by LCB.

          6)Provides that if legal material is preserved in electronic 
            form, the LCB must ensure the integrity of the electronic 
            record, provide for backup and disaster recovery of that 
            record, and ensure the continuing usability of the legal 
            material. 

          7)Specifies a number of considerations that LCB, in its capacity 
            as official publisher, must take into account in implementing 
            UELMA, including the standard and practices of other 
            jurisdictions, and the use of methods and technologies used by 
            other official publishers in states that have adopted UELMA.

          8)Becomes operative on July 1, 2015.

           EXISTING LAW  :  

          1)Requires the LCB to make specified categories of legislative 
            information available to the public in electronic form, 
            including, among other things, the California Codes, the 








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            California Constitution, and all statutes enacted on or after 
            January 1, 1993.  (Government Code Section 10248(a), 
            paragraphs (8)-(10).  All further references are to this code 
            unless otherwise stated.)

          2)Requires the LCB to operate and maintain an information system 
            in order to make legislative information, as specified, 
            available to the public by means of access by way of the 
            largest nonproprietary, nonprofit cooperative public computer 
            network, as well as by other means and in other formats so as 
            to provide the greatest feasible access to the general public 
            in this state.  (Section 10248(b).)

          3)Provides that any electronic public access through the above 
            computer network shall be in addition to other electronic or 
            print distribution of the information.  (Section 10248(f).)

           COMMENTS  :  With modern advances in information technology, all 
          states now publish their laws, statutes, rules and other legal 
          material online.  According to the author, however, while 
          electronic publication of legal material has facilitated greater 
          public access, it raises novel concerns about the authenticity 
          and preservation of this official information when in electronic 
          format.  For example, how can users accessing the text of a 
          statute online be assured that it is an unaltered, accurate copy 
          of the true language of the law?  This non-controversial bill 
          would adopt in this state the Uniform Electronic Legal Material 
          Act (UELMA), model legislation drafted by the National 
          Conference of Commissioners on Uniform State Laws (i.e. "Uniform 
          Law Commission") that provides for the authentication, 
          preservation, and accessibility of official state legal material 
          in electronic form.

           Background:   The Legislative Counsel Bureau (LCB) is required to 
          make the California Codes, statutes, Constitution, and other 
          specified legal information available to the public in 
          electronic form.  While this information is available at the 
          Legislative Counsel Bureau-maintained website 
          (www.leginfo.ca.gov), there is currently 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 State is the custodian of all acts and resolutions 
          passed by the Legislature, but it does not maintain an official 
          electronic version of California's laws.









                                                                  SB 1075
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          According to the Council of State Governments, while all 50 
          states now maintain online versions of their codes, only seven 
          states provide access to "official" versions online.  (  Public 
          Access to Official State Statutory Material Online  , p.2.)  In 
          2011, the Uniform Law Commission recommended that the states 
          adopt UELMA, and since then the Act has been introduced in six 
          states, including California.

           UELMA promotes flexibility to achieve standards for 
          authentication, preservation, and accessibility.   UELMA provides 
          an outcomes-based approach, which identifies standards and 
          goals, but not specific procedures that states that adopt the 
          Act must use to manage their electronic legal material.  In 
          short, this approach allows states to remain flexible when 
          fashioning solutions to the particular technological and 
          practical challenges it faces in implementing the Act.  Because 
          there is no uniformity of technology standards among states, 
          outcome-based requirements provide a reasonable solution to the 
          challenge of managing official publications in electronic form 
          and allow for the likely possibility that publication 
          technologies will change over time and require further 
          adaptation.  Finally, an outcomes-based approach is also 
          consistent with other uniform acts that have been widely adopted 
          by the states.  (See, e.g., the Uniform Electronic Transactions 
          Act (1999) (adopted by 47 states) and the Uniform Real Property 
          Electronic Recording Act (2004) (enacted in 27 states).) 
           
           This bill would designate the LCB as the official publisher in 
          California.  The bill would then require LCB to authenticate the 
          electronic records of official material-and more specifically, 
          "to 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."  Authenticity of 
          official legal material in electronic form is a concern because 
          all online information is transitory and vulnerable to hacking 
          and mischief.  Currently, California's online database of 
          electronic legal material (http://www.leginfo.gov) instructs 
          users to verify the authenticity of information elsewhere.  
          Using the standards articulated by the drafters of UELMA, this 
          bill would give LCB discretion to select appropriate methods of 
          authentication to achieve the desired outcome, which ultimately 
          could lead to the ability to provide the electronic legal 
          material's official and authenticated status through its 
          website.  









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          Under this bill, LCB would also have discretion to designate 
          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 LCB to provide backup and disaster recovery of the 
          electronic records, ensure the continuing usability of the 
          material in those records, and ensure that the material is 
          reasonably available for use by the public on a permanent basis. 
           The bill does not restrict the method by which California 
          achieves these goals, but specifies that it be informed by best 
          practices of other jurisdictions.  According to the Uniform Law 
          Commission, current best practices call for (a) the existence of 
          multiple electronic copies that are geographically and 
          administratively separated; (b) backup copies of electronic 
          records to be made periodically; and (c) backups to contain the 
          original material plus subsequent changes to the material.  
          (UELMA report (July 2011), p. 16.) 

          Finally, this bill would not require that legal material be 
          preserved only in electronic form.  According to the author, 
          "there is no consideration in implementing S.B. 1075 to 
          eliminate the print copies of the California Constitution, the 
          Statutes of the State of California, or the California Codes."  

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
          
          California Taxpayers Association (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 on file


           Analysis Prepared by  :    Anthony Lew / JUD. / (916) 319-2334 











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