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
___________________________________________________
December 2009
Interim 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.
September 23, 2009
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. BIKLIN, 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, AM 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, Ross McCollum Hall, 42
& Fair St., P.O. Box 830902, Lincoln, NE 68583-0902
BARBARA A. BINTLIFF, 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
6. PRESERVATION AND PERMANENT ACCESS.
SECTION 8.
RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND
NATIONAL COMMERCE ACT.
ALTERNATIVE
VERSION
SECTION
5. AUTHENTICATION OF ELECTRONIC
DOCUMENTS.
SECTION
7. PRESERVATION AND PERMANENT ACCESS.
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], In 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:
state-level legal material, including:
(A) laws or statutes passed
by the state legislature in each
legislative session; of this state at
a particular legislative session;
(B) codified laws or statutesof this state;
(C) state administrative
rules of this state that have the force and
effect of law, and;
[(D) decisions of state
administrative agencies[bb3] that have precedential effect;]
[(E) appellate judicial decisions [bb4] and other judicial
decisions of this
state that have precedential value;]
[(F) primary law materials of local governments or political
subdivisions of the state[bb5] ;]
[(G) other items as specified.]
(24) “Electronic”
means relating to technology having electrical, digital, magnetic, wireless,
optical, electromagnetic, or similar capabilities[bb6] ;
(35)
“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;
(49) “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.
(5) “Official Publisher”
means an executive, legislative, or judicial agency, department, board,
commission, authority, institution, or instrumentality of a state government
with the
responsibility
to publish a document, or a person designated under contract with the
responsible
agency or
instrumentality of state government to
publish a document.
(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;
(612)
“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?]
SECTION 3. APPLICABILITY. This [act] applies to an electronic document
that is published on the Internet.
Alternate Version
[SECTION
3. APPLICABILITY. This
[act] applies to an electronic document that is published only on the iInternet,
or is published on the Iinternet 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. ]
SECTION 4.
AUTHENTICATION OF ELECTRONIC DOCUMENTS. (1) The official publisher of an
electronic document subject to this [act] must authenticate it the document. At a minimum, authentication must include:
(1A)
documentation 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 that the
computer system used to create and store the document contains security measures
designed to minimize corruption of or tampering with the document, and establishes a
chain of custody for the document;
(2B)
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.
from the computer
system in which it was created to the web site on which it is displayed, with
an appropriate indicator of web site authentication; and
(3)
assurance that the document displayed on the web site is the document it
purports to be and is complete, with an appropriate indicator of document
authentication.
(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. If the publication of an electronic
document meets
the requirements in section 4 the electronic document is prima facie evidence
that it is the
complete document that it purports to be.
An electronic document authenticated under Section
4 is prima facie evidence of the content of the original document.
SECTION 6.
PRESERVATION AND PERMANENT
ACCESS. 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: establish a plan [bb9] both for
preservation of
the document and for permanent public access to the document. At a minimum,
the plan must include:
(1A) documentation of the
data format used in the original document creation;
(2B) periodic archiving
of the data, in paper or electronic form or both; and
(3C) periodic updating of
the document in new electronic formats, as necessary to provide long-term 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 810. 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] )).
[Note: Not sure we need this language; need to
consult with Pat Fry]
SECTION 9. EFFECTIVE DATE. This [act] takes effect [date]…
SECTION 3.
APPLICABILITY. This [act]
applies to an electronic document that is published on the internet.
SECTION
4. OFFICIAL VERSION.
(a)
If the electronic document is the only version of the document readily
accessible to the public, it must be designated official and meet the
requirements of sections 5 and 7.
(b)
If the official publisher continues to provide a print version of the
electronic document, the official publisher may designate the electronic
version as official, and must then meet the requirements of sections 5 and 7.
(c)
If the official publisher continues to provide a print version of the
electronic document, and designates only the print version as official, the
electronic version must at a minimum be clearly identified as unofficial upon
entry to the web site. [In addition, the web site must contain an explanation
of an alternative procedure for the public to obtain a certified copy of the
official version of the document.]
SECTION 5. AUTHENTICATION OF ELECTRONIC DOCUMENTS. The official
publisher of an electronic document which meets the criteria in section 4 (a)
or (b) must authenticate it…
SECTION 7. PRESERVATION AND PERMANENT ACCESS. The official
publisher of an electronic document which meets the criteria in section 4 (a)
or (b) must establish a plan…
[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.
[bb11]These provisions have been incorporated into the main body of the draft and, therefore, eliminated here.