BILL ANALYSIS Ó SB 1075 Page 1 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 : SB 1075 Page 2 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 SB 1075 Page 3 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 Page 4 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. SB 1075 Page 5 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 SB 1075 Page 6