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 2010 Strike and Score 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.
March 17, 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
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
AMERICAN BAR ASSOCIATION ADVISOR
LUCY THOMSON, 915 N. Quaker Dr.,
Alexandria, VA 22302, ABA Advisor
PHYLLIS B. PICKETT, 401
Legislative Office Bldg., 300 N. Salisbury St., Raleigh, NC 27603, ABA
Section Advisor
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
TABLE OF CONTENTS
SECTION 4.
AUTHENTICATION OF ELECTRONIC
LEGAL MATERIAL.
SECTION 5. EFFECT
OF AUTHENTICATION
SECTION 8.
UNIFORMITY OF STANDARDS.
SECTION 9. LEGAL MATERIAL FROM ANOTHER STATE.
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 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 that have precedential effect;]
[(E) appellate
judicial decisions and other judicial decisions that have
precedential
value;]
[(F)
primary law materials of local governments or political subdivisions of the
state;] and
[(G) other items
as specified.]
(41)
“Electronic” means relating to technology having electrical, digital, magnetic,
wireless,
optical, electromagnetic, or similar capabilities.
(52)
“Electronic documentrecord”
means a document record
created, generated, sent,
communicated,
or stored by electronic means, and readable online.
(3) “Legal material” means a
record which is:
(A) a law or
statute enacted by the state legislature in a legislative
session;
(B) a codified law
or statute;
(C) a
state administrative rule adopted under
[the state APA],; [agency or official];]
[(D) for any other state administrative rule;, [agency or
official];
[(E)
a decision of a
state administrative agency
that has precedential effect;]
[(F)
an appellate judicial
decision or other judicial
decision that has
precedential effect;]
and
[(G)
any other record,
as specified.]
(6) “Official”
means governmentally mandated or approved by statute or rule.
(74)
“Official Ppublisher”
means:
(A) for a law or statute enacted by the state legislature in a
legislative session, [agency or official];
(B) for a codified law or statute, [agency or official];
(C) for a state administrative rule [adopted under [the
state APA], [agency or official];
[(D) for any other state administrative rule,
[agency or official]]; ]
[(E) for a decision of a state administrative agency that has precedential effect, [agency or official];]
[(F) for an appellate judicial decision or
other judicial decision that has precedential
effect, [agency or official];] and
[(G) for any other record specified, [agency
or official].;]
[(H) for any legal
material for which no official publisher is designated, [secretary of state or
other agency or official].] 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.
(95)
“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.
(116)
“Publish” means to produce or release for general distribution[bb1] .
(7)
“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.
(128)
“State” means a state of the United States, the District of Columbia, Puerto
Rico,
the United States
jurisdiction
of the
(913)
[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.
(1Aa)
If the official publisher 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.
(Bb) If the electronic document
is the only version of the readily accessible to
the
public, If the legal
material is published only in an electronic
version, 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
SECTION 4. AUTHENTICATION OF
ELECTRONIC DOCUMENTS.
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
official publisher shall certify that
the electronic record is a true and correct copy of the content of the legal
material it purports to be by providing:
(1) a method for
users to determine that the content of the electronic
record is unaltered
from the one published by the official publisher, and
(2)
sufficient information to determine
that the certification is valid.
(1) The official
publisher of an
electronic document subject
to this [act] must
authenticate the .
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. EFFECT
OF AUTHENTICATION[bb2] . Electronic legal material authenticated under
Section 4 is presumed to be a true and
correct copy of the content of the legal material it purports to be.
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 legal material 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: shall
preserve the legal material. To preserve, the official publisher shall
provide a method to:
(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. [BB3]
(1) protect
the content, including provisions for
back-up and disaster recovery,; and
(2) ensure the
continuing usability of the content, which may include periodic updating of the
content in
new electronic formats if necessary.
SECTION 7. PERMANENT
PUBLIC ACCESS. The official publisher must shall
provide for continuing permanent public access to
the legal material. Public access
means the legal material is reasonably available for
use by the general public. document,
including the forms of the document preserved as required by Section 6. If
a document the
legal material is is
made available published only
in an electronic versionexclusively
electronically,
, the official
publisher shall continue to publish it 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.
(aa) 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.
(bb) 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 records
adopted by national standard-setting bodies; and
(3) the needs of
electronic document record users.
SECTION 9. DOCUMENTS
LEGAL MATERIAL FROM
ANOTHER
STATES. Electronic legal
material from another A document from
another state that is authenticated by that state consistent
with Section 4 of this [act] is presumed
to be a true and correct copy of the content of the legal material it purports
to be. prima facie evidence of the content of that document[bb4] .
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)). 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).
SECTION 11. EFFECTIVE
DATE. This [act] takes effect
[date]…