Center for Archival Resources On Legislatures (CAROL)
Project partners 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 legislative legal materials is of particular interest. Below you will find references to white papers that address authentication issues, as well as information on the Uniform Electronic Legal Materials Act, a model law. Links to additional resources are also provided.
Most Recent Update: The Minnesota Office of the Revisor of Statutes developed a prototype for authenticating legal materials. More information on this can be found below. (August 2012)
The National Conference of Commissioners on the Uniform State Laws (NCCUSL), also known as the Uniform Law Commission (ULC), drafted and approved in 2011 a model law that addresses the authentication and preservation of state electronic legal materials. The Uniform Electronic Legal Material Act (UELMA) establishes an outcomes-based, technology-neutral framework for providing online legal material with the same level of trustworthiness traditionally provided by publication in paper form. The Act requires that official electronic legal material be: (1) authenticated, by providing a method to determine that it is unaltered; (2) preserved, either in electronic or print form; and (3) accessible, for use by the public on a permanent basis. In 2012, six states introduced the act.
Information and links to the recent activities surrounding this act can be found on the Uniform Law Commission website.
NDIIPP project team members from Minnesota and California have been exploring methods of authentication and trying to assist others in understanding the purpose of authentication.
Authentication of Primary Legal Materials and Pricing Options December 2011 (pdf)
- Written by the Office of Legislative Counsel of California, this paper provides information on authentication methods and their associated costs. More information about this research can be found here. (Note: This link takes you out of CAROL.)
Authentication Methods January 2011 (pdf)
- Written by MHS staff, this paper summarizes various methods of authentication in use today. This paper is intended to give an overview of methods in use at this point in time.
Authentication Overview July 2008 (pdf)
- Written by MHS staff, this paper identifies and summarizes recent discussions about and documentation of digital authentication among the government records management, legislative, and judiciary communities—including a Federal initiative.
The Minnesota Office of the Revisor of Statutes has developed an authentication prototype demonstrating one way to authenticate legal documents for users as required by section 5 of UELMA.
The following paper describes the method and costs of this prototype involving a hash algorithm and secure connections across the Internet.
- Prototype for Authentication of Official Electronic Records and Pricing August 2012 (pdf)
Checksums for Fixity Checking
The following paper provides a background on checksums and summarizes five easily accessible programs that create and/or validate checksums.
- Checksum Programs Evaluation May 2012 (pdf)
The following reports document the evaluation in detail of the same five programs as described in the white paper above.
- Checksums for Windows May 2012 (pdf)
- ExactFile May 2012 (pdf)
- FSum Frontend June 2012 (pdf)
- FastSum May 2012 (pdf)
- File Checksum Integrity Verifier Utility May 2012 (pdf)
- HashMyFiles May 2012 (pdf)
Center for Technology in Government
Opening Government's Official Legal Materials: Authenticity and Integrity in the Digital World was written in February 2012 and discusses the background of UELMA, explores the concepts behind authenticated electronic materials, defines what it will take to create, maintain, and make available official electronic legal material, and provides recommendations for states.
Council of State Archivists (CoSA) Resource Center
The Resource Center maintained by CoSA brings together information on many issues including policies and procedures related to electronic records on a state-by-state basis. Information on other related topics is also provided.
Legal Framework of States
The following information provides the legal framework for the state of Minnesota as of December 2011. As state governments create records electronically, a decision needs to be made about what record is the 'official' copy, the printed record or an electronic version. The current legal status of Minnesota's statutes is provided below; other states have similar policies in place. With the passing of UELMA, these may need to be modified.
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 Minnesota 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.”
State Legislative Action
The following are recent examples of how authentication is being included in legislative activities at the state level.
- Connecticut General Assembly, Paperless Task Force, June 2010
- In Senate Bill 501, Section 43, Public Act 10-1 of the June 2010 Special Session, the language includes "the need to protect the authenticity of and to preserve such documents".
- Indiana: Informational Report of the Legislative Council Data Processing Subcommittee, November 2011
- When discussing paperless initiatives, areas of change include: "(e) Preservation and storage of electronic copies of legislative documents in a manner that permits the electronic copy to be authenticated in a court of law as an official copy of the document."
Specific Acts and Rules
Below is a select list of acts that have been passed over the past twelve years that address issues surrounding electronic records.
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 information consult NCCUSL's "Electronic Transactions Act" page. The National Conference of State Legislatures (NCSL) provides a state-by-state statutory citation list of 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 and placed on the Senate Legislative Calendar under General Order in September 2008.
Federal Rules of Evidence December 2008 (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.
Federal Rules of Civil Procedure December 2008 (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.
Perspectives from Legal Communities
The legal community has long been concerned with the idea of authenticity of evidence. The following articles specifically address electronic evidence. Likewise, the following organizations are examining electronic records as evidence, along with 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 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.
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 (UETA), a comprehensive effort to prepare state law for the advent of electronic commerce.
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.
A more extensive list of resources that relate to all topics in CAROL can be found here.
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August 29, 2012; links updated April 1, 2013.