Preserving state government digital information:
resources on Authentication
Project partners have identified authentication of digital material—the process by which information is assured to be what it appears or claims to be—as a common interest. The trustworthiness of online state statutes and session laws is of particular interest.
Background and resources are provided for the following:
- Model Law for Authentication and Preservation of State Electronic Materials
- State Statutes, Legislative Acts, and Interpretive Rules
- Selected State-Level Resources
- Perspectives from Legal Communities
- Selected Initiatives (U.S. Government Printing Office)
The National Conference of Commissioners on the Uniform State Laws (NCCUSL) is in the process of drafting a model law on the Authentication and Preservation of State Electronic Legal Materials to provide states with guidance on the issues. Information and most recent drafts can be found on the Uniform Law Commission website.
In the last decade, government information (including primary legal materials) has proliferated on the Web. Both the passing of legislation and also amendments made to existing rules mandated and aided this process, and are summarized herewith.
Legal Status of Minnesota's State Statutes
Minnesota Statutes Section 3C.13 (Legal Status of Statutes) reads in part, “Any volume of Minnesota Statutes, supplement to Minnesota Statutes, and Laws of Minnesota certified by the revisor [of statutes] according to section 3C.11, subdivision 1, is prima facie evidence of the statutes contained in it in all courts and proceedings.”
The revisor of statutes provides a certificate of correctness for the bound and printed copies: “I certify that each section printed in Minnesota Statutes [year of publication] has been compared with the original section of the statues or with the original section in the enrolled act from which the section was derived, together with all amendments to the original section. All sections appear to be correctly printed. [name] Revisor of Statutes.”
By contrast, the online version of the statutes provides this disclaimer: “Information on this website is not intended to replace the official versions. However, every attempt has been made to ensure that the information on this website is accurate and timely. The website is presented ‘as is’ and without warranties, either express or implied, including warranties regarding the content of this information.”
Uniform Electronic Transactions Act of 1999 (UETA)
The National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated UETA. It establishes the legal equivalence of electronic records and signatures with paper writings and manually-signed signatures, removing barriers to electronic commerce. For more, consult "Electronic Transactions Act" on NCCUSL's acts list. The National Conference of State Legislatures (NCSL) provides a state-by-state statutory citation list to UETA.
Electronic Signatures in Global and National Commerce Act of 2000 (E-Sign)
Congress enacted the Electronic Signatures in Global and National Commerce Act (pdf) that also establishes the validity of electronic records and signatures. It governs in the absence of a state law or where states have made modifications to UETA that are inconsistent with E-Sign. For an analysis of UETA versus E-Sign, consult Patricia Brumfield Fry's article, "Why Enact UETA?".
E-Government Act of 2002 (pdf)
The E-Government Act in part establishes "a broad framework of measures that require using Internet-based information technology to enhance citizen access to Government information and services." In an attempt to reauthorize the act, Senate bill 2321 was introduced in November 2007.
Federal Rules of Evidence (pdf)
These rules govern the introduction of evidence in proceedings, both civil and criminal, in Federal courts. While they do not apply to suits in state courts, the rules of many states have been closely modeled on these provisions. Article 10 generally covers authentication of items prior to being accepted into evidence. (December 2008)
Federal Rules of Civil Procedure (pdf)
These rules govern the conduct of all civil actions brought in Federal district courts. While they do not apply to suits in state courts, the rules of many states have been closely modeled on these provisions. Rule 34 covers the production of documents, electronically stored information (ESI) , and other tangible items for discovery purposes. (December 2008)
Although an evolving concern, the authenticity of state-level electronic records is by no means a new one. Here are resources authored by specific states:
Other more specific resources may be found in the Council of State Archivists' Archive Resource Center
The legal community has long been concerned with the purported authenticity of evidence. The following articles specifically address electronic evidence. Likewise the following organizations are examining electronic records as evidence and possible processes of authentication.
Articles On Electronic Evidence
In March 2006 Law Practice Today published George L. Paul’s article, “The ‘Authenticity Crisis’ In Real Evidence.” Paul provides a succinct overview of evidence, both analog and digital, and how an understanding of authenticity (especially as it relates to the Federal Rules of Evidence) must be more closely examined.
Stephen Mason, a barrister in the United Kingdom, takes up this same issue in his article, “Authentic Digital Records: Laying the Foundation for Evidence” (published in the September/October 2007 issue of The Information Management Journal). The article itself is based on Mason’s research project, Proof of the Authenticity of a Document in Electronic Format Introduced as Evidence (pdf), commissioned by the ARMA International Educational Foundation.
Selected Legal Communities
American Bar Association (ABA)
Among its functions, the ABA provides "information about the law, programs to assist lawyers and judges in their work, and initiatives to improve the legal system for the public."
The ABA's Information Security Committee (under the auspices of the Section of Science and Technology Law) has issued a Digital Signature Guidelines Tutorial in an effort to establish a framework for the authentication of computer-based information. It examines the historical legal concept of a "signature" and how digital signatures (using public key infrastructure technology) fulfill and expand that historical concept.
National Conference of Commissioners on Uniform State Laws (NCCUSL)
The NCCUSL (also known as the Uniform Law Commission, or ULC) promulgates legislation to facilitate clarity, consistency, and efficiency among state legislative points of law. The commission consists of qualified lawyers who are legislators, attorneys in private practice, state and federal judges, law professors, and legislative staff attorneys.
In 1999, the ULC promulgated the aforementioned Uniform Electronic Transactions Act, a comprehensive effort to prepare state law for electronic commerce’s advent. In autumn 2008, the ULC will convene the Study Committee on Authentication of Online State Legal Materials.
American Association of Law Libraries (AALL)
The AALL has authored two reports on electronic government information. The first, State-by-State Report on Permanent Public Access to Electronic Government Information (2003), surveyed what states were doing to provide permanent public access, "the process by which applicable government information is preserved for current, continuous and future public access." The second, State-by-State Report on Authentication of Online Legal Resources (2007), investigated whether government-hosted legal resources on the Web—state administrative codes and registers, state statutes and session laws, and state high and intermediate appellate court opinions—are official and capable of being considered authentic.
The AALL also hosted a national summit in 2007, "Authentic Legal Information in the Digital Age," and maintains a resource page with the summit's agenda and references to related material.
The Sedona Conference (TSC)
The Sedona Conference is a nonprofit research and education institute dedicated to the advanced study of law and policy. In addition to annual conferences, TSC also oversees the Working Group Series, a collection of think-tanks consisting of leading jurists, lawyers, experts and consultants who explore specific points of law, often resulting in formal publications.
The first of these working groups—Electronic Document Retention and Production (EDRP) —convened in 2002 and later issued The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (updated in a second edition in 2007). The Sedona Principles are a logical and refined extension of the Federal Laws of Civil Procedure and focus on the processes of electronic discovery (e-discovery).
In 2008 the EDRP issued its “Commentary on ESI [Electronically Stored Information] Evidence & Admissibility.” The commentary moves one step beyond the practice of e-discovery to discuss the admission of ESI into evidence. Appendix A includes a checklist of potential authentication methods (by format) with citations to the appropriate Federal Rules of Evidence.
U.S. Government Printing Office (GPO)
Established in 1813, GPO “is the Federal Government’s primary centralized resource for gathering, cataloging, producing, providing and preserving published information in all its forms."
To facilitate free electronic access to authentic government information produced by all three branches of the Federal Government, GPO maintains and oversees the Federal Digital System (FDsys).
Relying upon public key infrastructure (PKI) technology and digital signatures, GPO has begun to authenticate specific PDF documents. Both an explanation of PKI technology and GPO's efforts at authentication can be found on its Authentication page.
October 1, 2010; links updated December 19, 2011.