BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 1075 (Committee on Rules)
As Introduced
Hearing Date: April 17, 2012
Fiscal: Yes
Urgency: No
NR
SUBJECT
Uniform Electronic Legal Material Act
DESCRIPTION
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.
BACKGROUND
In 2011, the National Conference of Commissioners on Uniform
State Laws (NCCUSL) recommended that states adopt the Uniform
Electronic Legal Material Act (UELMA). That proposal, which is
contained in SB 1075, would provide 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. (Uniform Law
Commission, Legislative Fact Sheet - Electronic Legal Material
Act (2012),
�as of April 3, 2012].) However, few 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. 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
(more)
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or Westlaw.
The Legislative Counsel Bureau (LCB) is required to make the
California Codes and statutes and the California Constitution
available to the public in electronic form. While this
information is available at the Legislative Counsel
Bureau-maintained website www.leginfo.ca.gov , currently 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 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.
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.
CHANGES TO EXISTING LAW
Existing law establishes the LCB and proscribes activities and
conduct of the LCB. (Gov. Code Sec. 10200 et seq.) Existing
law 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.
10208.)
Existing law 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).)
Existing law 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).)
Existing law provides that any electronic public access shall be
in addition to other electronic or print distribution of the
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information. (Gov. Code Sec. 10248(f).)
This bill would define the following terms: "electronic
material," "legal material," "official publisher," and "record."
This bill would designate the LCB as the official publisher for
electronic legal material.
This bill would require 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.
This bill would provide 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, secure, and preserved.
This bill would provide 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.
This bill would specify considerations, including the best
practices of other official publishers and states, which
official publishers must take into account in implementing
UELMA.
This bill would become operative on July 1, 2015.
COMMENT
1. Stated need for the bill
The author writes is support of this bill:
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. California's State Constitution, statutes,
and codes are available at www.leginfo.ca.gov. However, that
website does not provide for authentication. By adopting �the
Uniform Electronic Legal Material Act] UELMA, through the
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passage of S.B. 1075, California 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 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.
The Council of California Law Librarians writes:
We support SB 1075 because it will ensure that anyone -
whether a judge, legislator, lawyer or member of the public -
will be able to verify the trustworthiness of California's
legal material available to them online. ? This bill addresses
the urgent problem ? that more and more states are putting
their legal resources online, without assuring trustworthiness
and reliability. ? In adopting UELMA by enacting this bill,
California will establish itself as a leader among states
understanding that official, electronic legal material must be
authenticated, preserved and made permanently available to the
public.
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2. The availability of government information online facilitates
transparency and accountability, provides widespread access,
and encourages citizen participation in the democratic process
Under existing law, the LCB is required to make California's
Codes and statutes, and the California Constitution
electronically available to the public in a timely manner. (Gov.
Code Sec. 10248(a)(8)-(10).) This bill would make the LCB the
official publisher, and would establish set criteria to follow
as the official publisher. These guidelines and standards for
official publishers were drafted by the NCCUSL in part to create
confidence in end-users that the electronic legal material they
collect from government websites is properly archived,
up-to-date, and accurate. (National Conference of Commissioners
on Uniform State Laws, Uniform Electronic Legal Material Act,
(July 2011) Comment p 5.)
Indeed, across the country as government leaders realize the
potential of technology to bring information to their
constituents, providing information online has become an
integral function of state government in the 21st century. (The
Council of State Governments, supra p. 1.) 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. For
those who are employed during normal business hours, without
transportation to the county law library, or inexperienced in
legal research, access to official legal material may be
limited.
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 then
must turn to online resources, which still may require
verification against official print versions, triggering the
logistical problems mentioned above.
In an increasingly complex legal system, Californians have a
need for reliable information from other states as well. Often
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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 , supra p. 2.) Because UELMA creates
uniformity from state to state, individuals who access the law
electronically will have the same assurances as to authenticity
and preservation in other UELMA states as they do in California.
Even beyond the goals outlined under this bill, practical
considerations in the act suggest that the online systems from
state to state will be similar. In other words, information
will be practically accessible for individuals trained in one
state's database or research system but not another.
3. UELMA provides guidance to the difficult problems of the
authentication and preservation of online legal material
a. Authentication
This bill would require official publishers to authenticate
the electronic record, or 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." In this way, 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 conducting serious transactions
online.
Unfortunately, a widespread reluctance to use un-authenticated
digital legal material leads to a lack of legal authority on
the issue. Case law and statutes dealing with authentication
of digital material are focused on evidentiary issues
regarding social networking, email, and text messaging.
Therefore, information available on the authentication of
electronic legal material is the product of research and
reports.
Early studies regarding authentication of official online
legal material stated "�a]n authentic text is one whose
content has been verified by a government entity to be
complete and unaltered when compared to the version approved
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or published by the content originator." (American
Association of Law Libraries, State-by-State Report on
Authentication of Online Legal Resources, (2007) p. 8.) The
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.
(National Conference of Commissioners on Uniform State Laws,
supra Prefatory Note p 5.)
Using the goals articulated by the NCCUSL, the LCB will be
able to choose methods of authentication upon the enacting of
SB 1075. Currently, California's online database of
electronic legal material (see b. Preservation
SB 1075 would address the problems of electronic legal
material preservation by requiring: 1) official publishers to
ensure the material is reasonably available for use by the
public on a permanent basis; and 2) official publishers
provide for preservation and security of the record. Legal
material retains its value regardless of whether it is
presently in effect. Lawsuits may turn on rights and
responsibilities created by former statutes or regulations.
Researchers need historical as well as contemporary legal
material to understand legal doctrine. Legal material,
therefore, must be saved and protected, or "preserved" for
future use.
In a print environment, information is preserved by
maintaining paper copies of key legal documents. Typically,
multiple libraries, archives or institutions keep copies of
these documents to assure preservation. Electronic
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information resides, however, on a computer or other storage
device. New versions of computer hardware, software and
storage media result in an inability to read or access older
files. Therefore, it is necessary that old documents are
preserved by "migrating" to new formats.
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
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) p. 16,
�as of April 3, 2012].)
4. Outcome-based legislation anticipates the problems with
maintaining trustworthy electronic legal material in the face
of constant technological advancement
While there is currently no opposition to this bill, concerns
regarding UELMA were raised at the 2012 mid-year meeting of
the American Bar Association when it was considering a
resolution to approve the Act. 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 opposed online material being
the sole official published version of a document. The
American Bar Association approved the resolution in February
of 2012.
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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 the
states. (see National Conference of Commissioners of Uniform
State Laws, Uniform Electronic Transactions Act (1999) �which
has been adopted by 47 states]; National Conference of
Commissioners of Uniform State Laws, Uniform Real Property
Electronic Recording Act (2004) �which has been enacted in 27
states/territories and introduced in three more states.].)
With respect to official publications, there is no consensus
on technology standards among states, so outcome-based
requirements provide an arguably sensible solution in this
context. Interstate sharing of experiences and expertise
regarding available and emerging technology also keep states'
costs down. Most importantly, an outcomes-based approach
anticipates that publication technologies will change over
time.
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."
Accordingly, at this time, legal material will be preserved
both online and in traditional print form.
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 Known
HISTORY
Source : California Commission on Uniform State Laws
Related Pending Legislation : None Known
Prior Legislation : None Known
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