D R A F T
FOR DISCUSSION ONLY
AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC
LEGAL MATERIALS ACT
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
MEETING
IN ITS ONE-HUNDRED-AND-NINETEENTH YEAR
CHICAGO,
ILLINOIS
JULY
9 - JULY 16, 2010
AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC
LEGAL MATERIALS ACT
WITH
PREFATORY NOTE AND COMMENTS
Copyright 82010
By
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
The
ideas and conclusions set forth in this draft, including the proposed statutory
language and any comments or reporter=s
notes, have not been passed upon by the National Conference of Commissioners on
Uniform State Laws or the Drafting Committee.
They do not necessarily reflect the views of the Conference and its
Commissioners and the Drafting Committee and its Members and Reporter. Proposed statutory language may not be used
to ascertain the intent or meaning of any promulgated final statutory proposal.
DRAFTING COMMITTEE FOR AUTHENTICATION AND
PRESERVATION OF STATE ELECTRONIC LEGAL MATERIALS ACT
The
Committee appointed by and representing the National Conference of
Commissioners on Uniform State Laws in drafting this Act consists of the
following individuals:
MICHELE
L. TIMMONS, Office of the Revisor of Statutes, 700 State Office Bldg., 100 Rev.
Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155, Chair
JERRY L. BASSETT, Legislative
Reference Service, 613 Alabama State House, 11S. Union St., Montgomery, AL 36130
DAVID D. BIKLEN, 153 N. Beacon
St., Hartford, CT 06105
DIANE F. BOYER-VINE, Office of
Legislative Counsel, State Capitol, Room 3021, Sacramento,
CA 95814-4996
STEPHEN Y. CHOW, 125 Summer St.,
Boston, MA 02110-1624
VINCENT C. DeLIBERATO, Jr., Legislative
Reference Bureau, Main Capitol Bldg., Room 641, Harrisburg, PA 17120-0033
GENE H. HENNIG, 500 IDS Center,
80 South Eighth St., Minneapolis, MN 55402-3796
STEVEN L.WILLBORN, University of
Nebraska College of Law, Ross McCollum Hall, 42 & Fair St., P.O. Box 830902, Lincoln, NE 68583-0902
BARBARA A. BINTLIFF, University
of Colorado at Boulder, 424 Wolf Law Bldg., 401 UCB, Boulder, CO 80309-0401, Reporter
EX OFFICIO
ROBERT A.
STEIN, University of Minnesota Law School, 229 19th Ave. South, Minneapolis, MN 55455, President
JACK DAVIES, 1201 Yale Pl., Unit
2004, Minneapolis, MN 55403-1961, Division
Chair
AMERICAN BAR ASSOCIATION ADVISOR
LUCY THOMSON, 915 N. Quaker Dr.,
Alexandria, VA 22302, ABA Advisor
PHYLLIS B. PICKETT, North
Carolina General Assembly, 401 Legislative Office Bldg., 300 N. Salisbury St., Raleigh, NC 27603, ABA Section Advisor
EXECUTIVE DIRECTOR
JOHN A. SEBERT,
111 N. Wabash Ave., Suite 1010, Chicago, IL 60602, Executive Director
Copies
of this Act may be obtained from:
NATIONAL
CONFERENCE OF COMMISSIONERS
ON
UNIFORM STATE LAWS
111 N.
Wabash Ave., Suite 1010
Chicago,
Illinois 60602
312/450-6600
www.nccusl.org
AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC
LEGAL MATERIALS ACT
TABLE OF CONTENTS
Prefatory Note. 1
SECTION
1. SHORT TITLE. 4
SECTION
2. DEFINITIONS. 4
SECTION
3. OFFICIAL ELECTRONIC LEGAL MATERIAL. 7
SECTION
4. AUTHENTICATION OF ELECTRONIC LEGAL
MATERIAL. 7
SECTION
5. EFFECT OF AUTHENTICATION.. 9
SECTION
6. PRESERVATION OF ELECTRONIC LEGAL
MATERIAL. 9
SECTION
7. PUBLIC ACCESS TO ELECTRONIC LEGAL
MATERIAL. 10
SECTION
8. STANDARDS. 11
SECTION
9. UNIFORMITY OF APPLICATION AND
CONSTRUCTION. 12
SECTION
10. RELATION TO ELECTRONIC SIGNATURES IN
GLOBAL AND NATIONAL COMMERCE ACT. 12
SECTION
11. EFFECTIVE DATE. 13
AUTHENTICATION AND PRESERVATION OF STATE ELECTRONIC
LEGAL MATERIALS ACT
Introduction. Providing information online is integral
to the conduct of state government in the 21st century. The ease and speed with which information can
be created, updated, and distributed electronically, especially in contrast to
the time required for the production of print materials, enables governments to
meet their obligations to provide legal information to the public in a timely
and cost-effective manner. State
governments have moved rapidly to the online distribution of legal information,
in some instances declaring a publication in electronic format to be an
official publication equivalent to a print version. Some state governments are eliminating
certain print publications altogether.
The availability of government information online facilitates
transparency and accountability, provides widespread access, and encourages
citizen participation in the democratic process. Changing to an electronic environment also
raises new issues in information management.
Electronic
legal information moves from its originating computer through a series of other
computers or servers until it eventually reaches the individual consumer. The information is susceptible to being
altered, whether accidentally or maliciously, at each transfer. Any such alterations are virtually undetectable. A major issue raised by the change to an
electronic environment, therefore, is whether the information consulted by
consumers is trustworthy, or authentic.
“An
authentic text is one whose content
has been verified by a government entity to be complete and unaltered when
compared to the version approved or published by the content originator.” When a document is authentic, it means that
the version of the legal resource seen by the user is the same version that was
approved by the lawmakers. A chain of
custody for that document has been established that ensures its integrity,
establishing that the transfer between the official publisher and the end-user
has not been tampered with. Few state
governments have taken the actions necessary to ensure that the electronic
legal information they create and distribute remains unaltered and is,
therefore, trustworthy or authentic.
Authenticity
is an issue unknown in the print age, where legal information typically exists
in multiple copies, the content of which is “fixed” once printed, making the
text easily verifiable and changes readily detectible. Print copies of legal material are routinely
certified by state officials, and the certification assures the user of the
trustworthiness of the document. It
stands to reason, therefore, that before state governments can transition fully
into the electronic legal information environment they must develop procedures
to ensure the trustworthiness of their electronic legal information.
The
ease with which electronic legal information is created and changed raises a
second critical consideration: how is legal information with long-term,
historical value (including, for example, amended statutes, repealed sections
of regulations, and overruled cases) preserved for future use? In a print environment, information is
preserved by maintaining paper copies of key legislative documents,
administrative materials, and judicial resources. It is typical for more than one library,
archive, or institution to keep a copy of these historical documents, further
insuring their preservation.
Electronic
information resides, however, on a computer.
New versions of computer hardware and software and changing storage
media continually result in an inability to read or access older files, thereby
losing their content. As hardware,
software, and storage media change, old documents are preserved by “migrating”
to new formats. Electronic legal
information of long-term value must be preserved in a usable format. Unfortunately, few states have addressed this
critical need, and fewer still have an infrastructure in place to monitor older
data and keep its storage method up-to-date.
The governmental and societal benefits of electronic creation and
distribution are limited severely if state government information becomes
unusable because of technological changes.
A
third issue raised by the electronic creation and distribution of legal
materials flows from the necessity of preserving all forms of documents with
long-term value: the issue is the responsibility of state government to make
its legal resources easily, and permanently, accessible. Legal information is consulted by citizens,
legislators, government administrators and officials, judges, attorneys,
researchers, and scholars, all of whom may require access to both the current
law and to older materials, including that which has been amended and
superseded. Once properly preserved,
electronic legal information of long-term value must also be easily accessible
on the same basis as other legal information; that is, electronic legal
information should be authenticated and widely available, on a permanent
basis. State governments must ensure an
informed citizenry, which is essential for our democracy to function.
The
issues that arise as state governments transition to an electronic legal information
environment are common to every state.
These issues are also encountered by subdivisions of state government,
including municipalities and counties, as well as the American Indian tribes. These governments face the same situation as
the larger state government, and likewise must manage the entire life cycle of
government information, from creation and publication to preservation. This act
can be adapted for use by any governmental entity.
About the act.
The
Uniform Authentication and Preservation of State Electronic Legal Material Act
provides states with an outcomes-oriented approach to the authentication and
preservation of legal material. That is,
the goals of the authentication and preservation program outlined in the act
are to allow end-users to verify the trustworthiness of the legal material they
are using and to provide a framework for states to preserve legal material in
perpetuity in a manner that allows for permanent access.
The act
does not require specific technologies, leaving the choice of specific
technology up to the states. Giving
states the flexibility to choose any technology that meets the required
outcomes allows each state to choose the best and most cost-effective method
for their state. In addition, this flexible,
outcomes-based approach anticipates that technologies will change over time.
It
should be noted that there are some important issues that this act does not
address, leaving those issues to other law or policy. The act does not mandate that states publish
electronically. The act does not deal
with copyright issues, leaving those to federal law. The act does not interfere with the
contractual relationship between the state and one or more commercial
publishers where the state contracts out the production of its legal
material. The act does not supersede the
state’s rules of evidence, as it simply provides that authenticated legal
material is presumed to be a true and correct copy.
Conclusion. Digital information formats have become
fundamental and indispensable to the operation of state government. This act addresses the critical need to
manage electronic legal information in a manner that guarantees the
trustworthiness of and continuing access to important state documents. Technology changes quickly enough that state
governments must address this issue, as existing electronic legal documents are
in danger of being lost already. A uniform
act will allow state governments to develop similar systems of authentication
and preservation, aiding the free flow of information across state lines and
the sharing of experiences and expertise to keep costs as low as possible.
A
uniform act should set forth provisions that can be efficiently followed and
that achieve the stated purposes of the act.
The Drafting Committee believes that this proposed uniform act meets
these requirements. The act is
straightforward in its terms, creates no additional administrative offices, and
has no requirement of judicial or administrative oversight. The act is based on proposed language from
the Study Committee, developed through extensive discussion and debate.
The
Drafting Committee was assisted by numerous advisors and observers,
representing an array of organizations.
In addition to the American Bar Association advisors listed above,
important contributions were made by the observers who attended meetings,
participated in conference calls, and submitted many comments and suggestions
to the various drafts of the act. The act
is better for their contributions.
AUTHENTICATION AND PRESERVATION OF STATE
ELECTRONIC
LEGAL MATERIALS ACT
SECTION 1. SHORT
TITLE. This [act] may be cited as the Authentication
and Preservation of State Electronic Legal Materials Act.
SECTION 2.
DEFINITIONS. For the purposes of this [act]:
(1) “Electronic” means relating to
technology having electrical, digital, magnetic,
wireless,
optical, electromagnetic, or similar capabilities.
(2) “Legal material” means:
(A) a law or statute
enacted by the [state legislature];
(B) a codified law or
statute; [and]
(C) an administrative
rule adopted under [the state APA][;] [and]
[(D) any other state
administrative rule][;] [and]
[(E) a decision of a
state administrative agency that has precedential effect][;] [and]
[(F) an appellate
judicial decision or other judicial decision that has precedential effect][;]
[and]
[(G) any other record,
as specified].
(3) “Official publisher” means:
(A) for a law or statute
enacted by the [state legislature], the [agency or official]; (B) for a codified
law or statute, the [agency or official]; [and]
(C) for an
administrative rule adopted under [the state APA], the [agency or official][;]
[and]
[(D) for any other state
administrative rule, the [agency or official]][;] [and]
[(E) for a decision of a
state administrative agency that has precedential effect, the [agency or official]][;]
[and]
[(F) for an appellate
judicial decision or other judicial decision that has precedential effect, the
[agency or official]][;] [and]
[(G) for any other
record specified, the [agency or official]][;]
[and]
[(H) for any legal
material for which no official publisher is designated, the [secretary of state
or other agency or official]].
(4) “Publish” means to display,
present, or release to the public.
(5) “Record” means information that
is inscribed on a tangible medium or that is stored in an electronic or other
medium and is retrievable in perceivable form.
(6) “State” means a state of the
United States, the District of Columbia, Puerto
Rico, the
United States Virgin Islands, or any territory
or insular possession subject to the
jurisdiction of
the United States.
Comment
Several
definitions used in this act are those recommended by the Conference, including
“electronic,” “record,” and “state.”
These words, so defined, have been used in other acts promulgated by the
Conference, including notably the Uniform Electronic Transactions Act (UETA),
which has been adopted by 46 states, the District of Columbia, and the Virgin
Islands as of May, 2010. The use of
these terms in the same manner in several acts leads to a consistency within
the laws of each state adopting the several acts in addition to the
sought-after uniformity among states.
Legal material. (Section 2(3)). The definition of “legal material” is
intentionally narrow. As drafted, it
includes only the most basic state-level legal documents: session laws,
codified laws, and administrative rules adopted under the state’s version of
the Administrative Procedure Act (APA).
The act gives adopting states the option to expand the definition, and
several alternatives are presented including administrative rules of agencies
not covered by the state APA, certain state administrative agency decisions,
and certain judicial decisions.
Optional
language for administrative decisions is provided in recognition of the varying
ways in which state governments may create and regulate executive branch
agencies. An individual state may have
some administrative agencies that are subject to the provisions of the state
APA while other agencies in that state are not.
State
administrative agency decisions with precedential effect is included as an
option for two reasons. First, not all
state administrative agencies render decisions, and second, not all state
administrative agency decisions have precedential effect.
In
some states, the publication of judicial decisions is handled by the judicial
branch, over which the state legislature may have no authority to mandate
specific procedures such as created by this act. Because of this potential separation of
powers issue, judicial decisions are included in this act as an option in the
definition of legal material.
An
option is provided for each state to decide for itself what other records may
be included in the definition of legal material. Many important documents, like those
comprising legislative histories, legislative journals and calendars, and many
agency publications, could be included.
Whether
a state legislature can include in the coverage of the act the records from
certain executive branch officials (executive orders and proclamations, or
attorney general opinions, for example) raises a separation of powers issue
similar to that regarding judicial decisions. These records would fit within Section 2(G),
if a state desired to include them.
Official publisher. (Section 2(4)). For each type of legal material defined by
the act, the state must designate an official publisher. This can, and most likely will, be an
existing state agency or employee who already has responsibility for the
publication of the legal material. The
official publisher is the state employee charged with carrying out the
provisions of this act.
To
complete the definition of official publisher, an appropriate government agency
or employee for each type of legal material must be identified, as indicated by
bracketed language. Because the legal
material may come from different departments and even different branches of the
government, the official publisher may be one employee or agency, or
several. In addition, states should name
a default official publisher. This provision
ensures that a specific agency or employee has responsibility ultimately for any
legal material covered by the act.
Many
states contract with commercial printers or publishers for the production of
their legal material. The act does not
interfere with that contractual relationship.
Copyright
and licensing of legal material is not addressed, nor are commercial versions
of legal materials that are not published under the responsibility of the
official publisher. This act only
applies to legal material published by the official publisher.
SECTION 3. OFFICIAL
ELECTRONIC LEGAL MATERIAL.
(a) If the official publisher of
legal material publishes a print version of the legal material, the official
publisher may designate an electronic version as official if the requirements
of Sections 4, 6, and 7 are met.
(b) If the official publisher of
legal material publishes the legal material only in an electronic version, the
official publisher shall:
(1) designate the electronic version as official; and
(2) meet the requirements of Sections 4, 6,and 7.
Comment
This
act does not direct a state to publish its legal material in any specific
format or in multiple formats. That
decision is left to the state. Nor does
the act require that legal material published in a specific format be
designated official; again, that is a matter left to the individual state. This act applies to legal material published
in an electronic format that is designated official by the official publisher.
The act leaves policy decisions regarding format of its legal material to the
legislature, but requires that electronic versions be clearly designated as
official if that is the state’s intent.
For
legal material published in both print and electronic formats, as is typical in
many states, the official publisher may choose to designate the electronic
version as official. If designated
official, the requirements of the act must be met.
The
act imposes responsibilities on the official publisher where the legal material
is published only in an electronic format.
Section 3 requires that legal material published only in electronic
format be designated official. This is a
common sense requirement; if legal material is available from the state
government in one version only, it follows that that version must be
official.
If
the electronic version is not designated official, and is not, therefore,
covered by this act, the state should include information that displays with
the legal material that explains the procedure by which the public can obtain a
certified copy of the official version of the legal material.
SECTION 4. AUTHENTICATION
OF ELECTRONIC LEGAL MATERIAL. The official publisher of legal material
in an electronic record that is designated official under Section 3 shall
authenticate the record. To authenticate
the record, the official publisher shall certify that the electronic record is
a true and correct copy of the legal material by providing:
(1) a method for users to determine
that the electronic record is unaltered from the one published by the official
publisher; and
(2) sufficient information to
determine that the certification is valid.
Comment
The
intent of this act is to be technology-neutral, leaving it to the adopting
state to choose its preferred technology for authentication (and preservation
and access) of legal material, and allowing the state to change technologies
when necessary or desired. The vulnerability of electronic records to
inadvertent or malicious change underscores the importance of ensuring the
authenticity of electronic legal material.
Certification
of legal material is the standard in the print world. End-users of legal material understand the
meaning of a “certified” document, that is, that the document is official and
accurate, as attested to by an official signature, seal, stamp, or other
device. This act provides for an
equivalent procedure for electronic legal material.
The
act presents an outcomes-based approach to dealing with electronic legal
material, using an approach to authentication that consists of two parts. First, the state provides a method for users
to determine that the legal material is authentic, or trustworthy. This is comparable to providing certification
in the print world. In addition, the
state provides information for the end-user to determine that the certification
itself is valid. This allows the
end-user to be satisfied that the chain of custody for the legal material has
not been interrupted and the legal material is, therefore, unaltered. The second step is necessary in the world of
electronic legal information, where multiple copies are not available to allow
the end-user to compare the legal material with a second copy. The official publisher provides assurance of
authenticity and the end-user can verify that assurance. The outcome is that the state’s promise of
authenticity is verified.
Authentication
is a term of art in this context. The
term “authenticate” has been used different manners in other uniform acts, for
example in Article 9 of the Uniform Commercial Code. While acknowledging that the term is used
differently in various contexts, its use in this act is consistent with its
usage in information management and computer security settings.
This
act does not specify the baseline document against which all others are to be
compared for purposes of authentication.
The enacting state must identify the baseline document, the “real
document,” against which all others are compared, as part of the implementation
of this act. The baseline document may
vary based type of legal material to be authenticated; in some instances the
baseline document may be in print while in others it may be electronic.
SECTION 5. EFFECT OF
AUTHENTICATION.
(1) Electronic legal material authenticated under Section 4 is presumed
to be a true and correct copy of the legal material.
(2) Electronic legal material from another state that is authenticated in
a manner that complies with Section 4 is presumed to be a true and correct copy
of the legal material.
Comment
Certification of a document, the standard
in the print world, provides a presumption that the certified legal material is
accurate and complete. The intent of
this act is to provide the end-user of electronic legal material with the same
presumption.
The act
does not supersede any rules of evidence.
The act does not require electronic legal material from another state to
be authenticated for use in the enacting state.
If, however, electronic legal material from another state is
authenticated in a manner that complies with Section 4, it is provided with the
same presumption of accuracy and completeness.
SECTION 6.
PRESERVATION OF ELECTRONIC LEGAL MATERIAL.
The official publisher of legal material in an electronic record shall
preserve all published legal material.
To preserve legal material, the official publisher shall:
(1) protect the electronic record,
which includes retention of formatting with legal significance; and
(2)
provide for back-up and disaster recovery; and
(3) ensure the continuing usability
of the legal material, which may include periodic updating into new electronic
formats as necessary.
Comment
Enacting
states are given discretion to decide what legal material must be
preserved. This is done through the
definition of legal material in Section 2.
Once published, however, the legal material must be preserved. This includes legal material that is
subsequently amended or repealed, as happens with statutes, as well as legal
material like cases that may be reversed or overruled. Legal material retains its historical value
regardless of its current effectiveness.
All states have incorporated
electronic technologies into their operations; most have begun to produce
electronic legal material, even if the electronic legal material is not
designated official. As electronic technologies
become indispensable to state operations, security and preservation measures
become more important. Electronic
records are vulnerable to natural disasters, accidental corruption,
mishandling, and intentional change.
Best
practices for providing preservation and security of electronic records include
the maintenance of multiple copies of electronic records that are
geographically and administratively separated.
Multiple copies ensure that at least one copy of important records is
available even in an emergency. Storage
of copies in separate locations, under control of different personnel, adds an
additional measure of security. Two or three copies of electronic records, if
secured and separated appropriately, are generally considered adequate for
preservation and security purposes. Most states already have adopted these best
practices, which are the foundation for the preservation of electronic legal
material. This act requires the official
publisher of legal material to protect the record using security and
preservation methods determined by the state.
Legal
material is often complex in organization and presentation. The formatting of the content of the legal
material, including italicization, indentation, numbering, bold face fonts, and
internal subdivisions and subsections, can be significant. Hierarchies are defined and priorities are
established, for example, by formatting.
The official publisher is required to preserve the legally significant
formatting of electronic legal material to ensure that both the content and the
organization are available in the future.
Further,
the official publisher is required to provide for back-up of electronic legal
material by storing additional copies of the legal material for use in
restoring records that may be lost or damaged, including by natural
disaster. The back-up may be by many
means, such as by a mirror site, which is a second, exact, copy of the
electronic legal material in a different site than the original, or by creating
multiple disks or tapes of the legal material that are stored in remote
locations. The back-up may be
incremental, essentially tracking all changes to the original, or a continuous
backing up of the entire system that saves the complete text of each version,
among other methods. Whatever method the
state chooses must back-up the original material plus subsequent changes; a
changed record becomes a new record with content that must be backed-up also. Legal material is continually updated; states
must develop systems that recognize the dynamic nature of legal material and
provide for appropriate preservation.
The
rapid evolution of electronic technologies in the last decade, and especially
the changes in storage media, emphasize the necessity of updating stored
electronic records to new technologies.
While the exact specifications for new technologies are not known at the
present, the fact that new technologies will be developed is a certainty. This
section requires migration to new technologies, as needed, to ensure
preservation of legal material and for the continued usability of the
information. Preservation must include a
means by which the content of the original record can be retrievable in a
readable form that can be authenticated.
SECTION 7. PUBLIC
ACCESS TO ELECTRONIC LEGAL MATERIAL.
The official publisher of legal material in an electronic record shall
ensure that the legal material preserved under Section 6 is reasonably
available on a permanent basis for use by the general public. If the legal material is published only in an
electronic record, the official publisher shall continue to publish it in an
electronic record.
Comment
Our
democratic system of government depends on an informed citizenry. Legal material includes information essential
to all citizens in a democracy, whether the legal material is effective
currently or is of historical value only.
Citizens must have reasonable access to all legal material. This section highlights the importance to the
citizenry of legal material by requiring permanent public access to electronic
legal material. Together with print’s
ubiquity of copies and access, permanent public access to electronic legal
material allows citizens to stay informed of legal developments and carry out
their democratic responsibilities.
Legal
material preserved under this act must be “reasonably available” to the general
public. Reasonable availability does not necessarily mean that the information
must be accessible around the clock, every day of the year. An enacting state
has discretion to decide what is reasonable, which should be determined in a
manner consistent with other state practice. It may mean that the legal
material is available during business hours at publicly accessible locations, such
as designated state offices, public libraries, a state repository or archive,
or similar location. This section
recognizes that historical information, while important, is not usually as
essential to all citizens as is current legal material. Therefore, access to preserved legal material
may be limited, although it cannot be restricted to the point of
unavailability. Legal material published only in an electronic record must be
maintained in an electronic record to facilitate legal research and continued
access to the legal material as originally published.
Access
to preserved electronic legal material may be limited by the state’s
determination of reasonableness, but access must be offered permanently. That is, the electronic legal material must
remain available in perpetuity. This
requirement makes electronic legal material comparable to print legal material,
which is stored on a permanent basis in libraries, archives, and offices.
SECTION 8. STANDARDS. In implementing the requirements of this
[act], the official publisher shall consider:
(1) standards and practices of other
jurisdictions;
(2) any standards on authentication
and preservation of records adopted by national standard-setting bodies; and
(3) the needs of electronic record
users.
Comment
Standards
for authentication, preservation, and permanent access of electronic records
are beginning to be developed by some governmental organizations at both state
and federal levels. Like many other
technology-related practices, these standards will remain unfinished and under
revision for some time.
This
language of this section, based on a similar provision in the Uniform
Electronic Real Estate Recording Act, requires consideration of the changing
nature of these standards. The official
publisher must develop plans to authenticate and preserve legal material,
determine appropriate standards to allow for implementation of the plans, and
update the plans as necessary. The
state’s standards should include a method to evaluate the effectiveness of the
official publisher’s actions in providing for authentication, preservation, and
permanent access to electronic legal material.
Each
enacting state will determine its own specific practices but, in the interest
of efficiency, states are encouraged to communicate and coordinate in the
development of authentication, preservation, and permanent access standards. Several national organizations are
considering the promulgation of best practices statements and standards; their
work, when completed, might offer sound guidance. International organizations may also be
tackling this issue and, to the extent that their work is relevant to US
states, it could also be considered.
SECTION 9. UNIFORMITY
OF APPLICATION AND CONSTRUCTION. In applying and construing this uniform
act, consideration must be given to the need to promote uniformity of the law
with respect to its subject matter among the states that enact it.
Comment
This
language is based on a similar provision in the Uniform Electronic Real Estate
Recording Act.
SECTION 10. RELATION
TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes
the federal Electronic Signatures in Global and National Commerce Act, 15
U.S.C. Section 7001, et seq., but does not modify, limit, or supersede Section
101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery
of any of the notices described in Section 103(b) of that act, 15 U.S.C.
Section 7003(b).
Comment
This
language is based on a similar provision in the Uniform Electronic Real Estate
Recording Act.
SECTION 11.
EFFECTIVE DATE. This [act] takes effect [date]…
Comment
This
act applies to legal material created after the effective date of the act. Each enacting state will need to determine
the proper date of effectiveness of the act, including whether additional time,
beyond the usual date of effectiveness of its statutes, is needed in order to
meet the requirements of authentication, preservation and public access.