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
___________________________________________________
March 5 – 7, 2010
Committee Meeting Draft
Without Prefatory Note or
Comments
Copyright © 2009
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.
January 7, 2010
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, 700 State Office Bldg.
100 Rev. Dr. Martin Luther King Jr. Blvd.,
St.
Paul, MN 55155, Chair
JERRY L. BASSETT, 613 Alabama State House,
11S. Union St., Montgomery, AL 36130
DAVID D. BIKLEN, 153 N. Beacon St., Hartford,
CT 06105
DIANE F. BOYER-VINE, State Capitol, Room
3021, Sacramento, CA 95814-4996
STEPHEN Y. CHOW, 125 Summer
St., Boston, MA 02110-1624
VINCENT C. DeLIBERATO, Jr., Main Capitol
Bldg., Room 641, Harrisburg, PA 17120-0033
JOHN S. GILLIG, P.O. Box 4285, 91 C Michael
Davenport Blvd., Frankfort, KY 40604
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
ROBERT A. STEIN, University of Minnesota Law
School, 229 19th Avenue South, Minneapolis,
MN 55455, President
JACK DAVIES, 1201 Yale Pl., Unit 2004, Minneapolis, MN 55403-1961, Division Chair
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
AUTHENTICATION AND PRESERVATION
OF STATE ELECTRONIC LEGAL MATERIALS ACT[bb1]
TABLE OF CONTENTS
SECTION
4. AUTHENTICATION OF ELECTRONIC
DOCUMENTS.
SECTION
5. PRIMA FACIE EVIDENCE.
SECTION
7. PERMANENT PUBLIC ACCESS.
SECTION
8. UNIFORMITY OF STANDARDS
SECTION
9. DOCUMENTS FROM OTHER STATES.
SECTION
10. RELATION TO ELECTRONIC SIGNATURES IN
GLOBAL AND NATIONAL COMMERCE ACT.
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) “Authenticate” means to verify that the content of a document is complete and unaltered from the version published by the official publisher.
(2) “Chain of custody” means a chronological documentation, or paper trail, showing the official control and transfer(s) of a document, whether physical or electronic.
(3) “Document” means the following primary law materials published by or under the authority of the government[bb2] of this state:
(A) laws or statutes passed by the state legislature in each legislative session;
(B) codified laws or statutes;
(C) state administrative rules that have the force and effect of law;
[(D) decisions of state administrative agencies[bb3] that have precedential effect;]
[(E) appellate judicial decisions [bb4] and other judicial decisions that have precedential value;]
[(F) primary law materials of local governments or political subdivisions of the state[bb5] ;] and
[(G) other items as specified.]
(4) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities[bb6] .
(5) “Electronic document” means a document created, generated, sent,
communicated, or stored by electronic means, and readable online[bb7] .
(6) “Official” [bb8] means governmentally mandated or approved by statute or rule.
(7) “Official Publisher” means an agency, department, board, commission, authority, institution, or instrumentality of state government, whether in the legislative, executive, or judicial branch, with the responsibility to publish a document pursuant to governmental mandate or as approved by statute or rule.
(8) “Permanent public access” means current, continuous and future public use.
(9) “Person” means an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(10) “Preservation” means providing for permanent, uninterrupted access to the intellectual content of a document, either in its original publication form or as reformatted by the official publisher.
(11) “Publish” means to produce or release for general distribution.
(12) “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.
(13) [Other definitions to be added?]
Alternative 1
SECTION 3. APPLICABILITY. This [act] applies to an electronic document that is published on the Internet.
Alternative
2
[SECTION 3. APPLICABILITY. This [act] applies to an electronic document that is
published only on the Internet, or is published on the
Internet and is designated official.
(1) If the electronic document is the only version of the document readily accessible to the public, it must be designated official and must meet the requirements of Sections 4, 6, and 7 of this [act].
(2) If the official publisher provides a print version of the electronic document, the official publisher may designate the electronic version as official provided that the requirements of Sections 4, 6, and 7 of this [act] are met.
(3) If the official publisher provides a print
version of the electronic document and designates only the print version as
official, the electronic version must, at a minimum, be identified clearly as
unofficial on its online display. The
online display must also explain the procedure by which the public can obtain a
certified copy of the official version of the document.]
End of Alternatives
(1) The official publisher of an electronic document subject to this [act] must authenticate the document. At a minimum, authentication must include:
(A) certification that establishes a chain of custody for the document from its official publication to the computer system in which it is stored permanently; and
(B) protection of the transmission of the document by security measures designed to prevent corruption of or tampering with the document from the computer system in which it is stored permanently to the computer system of the user.
(2) An authenticated electronic document must display clearly an indicator of its authenticity.
(3) If an official publisher enters into a contract with a person to publish a document, the official publisher must require compliance with this [act] as a term of the contract.
SECTION 5. PRIMA FACIE EVIDENCE. An electronic document authenticated under Section 4 is prima facie evidence of the content of the original document.
SECTION 6. PRESERVATION. The official publisher of an electronic document subject to this [act] must provide for preservation of the document, including the current text and all amendments, changes, and superseded versions. At a minimum, preservation must include: [bb9]
(A) documentation of the data format used in the original document creation;
(B) periodic archiving of the data, in paper or electronic form or both; and
(C) periodic updating of the document in new electronic formats, as necessary to provide continuing permanent public access to the document.
SECTION 7. PERMANENT PUBLIC ACCESS. The official publisher must provide for continuing permanent public access to the document, including the forms of the document preserved as required by Section 6. If a document is made available exclusively electronically, it must remain available electronically permanently, either in its original location or in an archived location. The official publisher must ensure that all amended, changed, or superseded documents shall remain available on conditions of access similar to those in effect for then-current documents.
SECTION 8.
UNIFORMITY OF STANDARDS.
(a) This [act] must be applied and construed to promote uniformity of the law with respect to its subject matter among the states that enact it.
(b) In implementing the requirements of this [act], the official publisher must consider:
(1) standards and practices of other jurisdictions;
(2) any standards on authentication and preservation of documents adopted by national standard-setting bodies; and
(3) the needs of electronic document users.
SECTION 9. DOCUMENTS FROM OTHER STATES. A document from another state that is authenticated by that state consistent with Section 4 of this [act] is prima facie evidence of the content of that document.
SECTION 10. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes the federal 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. Section7003(b[bb10] )).
[bb1]I can’t make changes to this page at this time—the embedded links don’t let me fiddle with the text. We can fix this later.
[bb2]I think we need to indicate that the “document” comes from the government; otherwise, would not the act apply to anyone publishing the law?
[bb3]This anticipates the action of the Drafting Committee on the state APA that is considering recommending state administrative agency decisions have precedential effect. We will have to monitor the actions of that Drafting Committee to determine whether this is actually included or not.
[bb4]The alternative nature of this language recognizes that, in some states, the publication of judicial decisions is a function of the judicial branch, not the legislative branch.
[bb5]The Notes to Section 2 will include elaboration of this point, including that the [act] can be adapted by Native American Indian tribal governments.
[bb6]Definition from Study Committee draft.
[bb7]I am trying to define out such “electronic” media as microfiche, CDs, DVDs, etc.
[bb8]This definition comes from the AALL Authentication Report, p. 8.
[bb9]Instead of requiring a “plan” for preservation, I suggest that we outline what needs to be done and let the states figure out how to accomplish it.