Nov. 2, 2016 – State and federal primary legal materials are accessed predominantly via electronic formats as print collections recede at an accelerating pace. Printed statutes and regulations, once considered the standard for codified law, are giving way to a variety of online versions as official print counterparts have begun to disappear in many state jurisdictions.

Just as lawyers shoulder more responsibility to protect information in diverse electronic environments – as described in the October 2016 cybersecurity issue of Wisconsin Lawyer – courts and legislatures face similar challenges. Authentication and preservation are fundamentals of responsible records management for lawyers and law firms, extending well beyond the locked file cabinet full of paper files. In an era of e-filing, email, and budget cuts, print is diminishing as the first choice for legal communication of all varieties, including primary law. Valid concerns exist that many states’ online primary legal materials are not securely maintained or preserved.

In 2011, the Uniform Law Commission (ULC), an organization that periodically recommends laws to the states (for example, the Uniform Commercial Code), approved the Uniform Electronic Legal Material Act (UELMA) and recommended it for passage in all the states. Work on the question of trustworthy electronic versions of primary laws was underway as early as 2003 in Colorado and Minnesota. By 2007, the American Association of Law Libraries (AALL), law faculty, lawyers, and state Revisors of Statutes had started collaborating about ways to guarantee a legitimate transition to electronic versions of state laws, as the official print mainstays began to disappear. The Act was approved by the American Bar Association House of Delegates in 2012, and the ABA Standing Committee on the Law Library of Congress endorsed it in 2013.

Lawyers routinely rely on commercial databases like Westlaw, Lexis, Bloomberg Law, and Fastcase for research and citation of primary law in court pleadings. Some of these materials would be considered official documents, for example, a PDF version of a Federal Supplement case pulled from Westlaw, or a state session law in PDF, downloaded from HeinOnline. However, much of the primary law in the most commonly used commercial databases is not, nor does it claim to be, an official, authenticated source.

Access to Authenticated, Official Federal Primary Law Already Is Available

The Government Publishing Office (GPO) prioritized – and made happen – access to official federal primary law. Acquiring authenticated, official PDF sources of federal primary law is now simpler, more secure, and free on the GPO’s Federal Digital System site, Fdsys.gov. Although somewhat arcane, the website is comprehensive and reliable, and official, as any law review editor or U.S. Supreme Court brief writer can attest.

Valid concerns exist that many states’ online primary legal materials are not securely maintained or preserved.

Just as important, Fdsys.gov provides free access to authenticated federal primary law to anyone who braves its search and help features. Current and older versions of the U.S. Code, the C.F.R., the Federal Register, many federal court opinions, and other materials are available on the website. An upgrade of the pioneering FDsys, called GovInfo.gov, is available now in beta testing and ultimately will become the upgraded platform.

What About the 50 States?

Is there a free, official, authenticated, and trustworthy way to get digital versions of the primary law of all 50 states? No. Each state must pass its own statutory requirements and implement them.

Once a state enacts and implements a UELMA statute, anyone with access to the internet, including pro se litigants, can use the state’s government websites to view and download official, updated, secure versions of the law.

Thirteen states have enacted UELMA statutes since 2011 and several have introduced the legislation in the current cycle:

Source: The Uniform Law Commission UELMA home page.

What Does UELMA Require?

To be UELMA-compliant, specific criteria must be met that guarantee the validity of the electronic version of a state’s laws.

If a primary legal material is published by the state only in electronic form, it must be designated by the state as the official version.

To be official, the material must be:

• capable of being authenticated (validated materials uploaded to a secure state website and downloaded securely to the end user),

• preserved, and

• permanently accessible to the public.

Four categories of state legal material are named in the uniform law, allowing some flexibility for inclusion:

1. the state constitution,

2. state session laws (acts),

3. codified laws (statutes), and

4. agency regulations that have the effect of law.

Some UELMA states have opted not to include regulations.

A state can include additional legal material if it chooses.

• For example, if Wisconsin (which is not a UELMA state) enacted UELMA, it might decide to add its administrative register, as several states have done. The Wisconsin Administrative Register is no longer published in the official, print version, and electronic-only Registers from January 2015-forward are not official.

• Nebraska, not yet a UELMA state, has been developing a UELMA-compliant method for electronic versions of its appellate judicial opinions decided after Jan. 1, 2016. Nebraska publishes decisions only online after that date. These opinions have been designated as official by the Nebraska Supreme Court.

UELMA does not require specific technology to accomplish authentication or preservation. Instead, its requirements are outcomes-based, so states can choose the best technology for their purposes.

• Minnesota established a cost-neutral authentication method that adds a step for the user. Once the document is downloaded from the secure state website, the recipient can type the URL of the downloaded page into a frame on the state page. If the URL matches, a verification message arrives confirming the document was downloaded successfully in unaltered form. Attorneys in Minnesota commonly use these versions when certified copies are needed.

• California and several other states employ digital signatures similar to the GPO signature that is imprinted on downloads from FDsys. If UELMA is enacted in one state, its authenticated legal material likely would be acceptable in other UELMA states in which the document might be filed or cited.

What About Wisconsin?

Currently, Wisconsin’s online primary legal resources are not official or UELMA-compliant.

There is no declaration of any official version of the Wisconsin statutes, either in print or online.

The online version of Wisconsin Statutes & Annotations is certified, as defined in Wis. Stat. section 35.18.

The certification aims to verify that the electronic version of a statute uploaded by the Legislative Reference Bureau matches the printed text of an enacted law. Certification applies only to Wisconsin statutes, not other primary legal materials on the Wisconsin legislative documents website.

The website for Wisconsin legislative documents is presented on a secure connection. The prefatory material to the online version of the statutes explains how the user can verify that the statutes actually were uploaded from the Wisconsin Legislature's secure document server. But there is no mechanism on the Wisconsin government website to verify that materials have downloaded securely to an end user.

Wis. Stat. section 13.92(1)(f) requires retention and free access in electronic form to acts, statutes, and the administrative code and register. The Wisconsin government archive database has complete or nearly complete retrospective coverage of primary legal materials, depending on the category.

The preservation and retention requirements in Wis. Stat. chapter 13 operate in the spirit of open access that historically has set Wisconsin apart from many other states, when print was the only source for legal material.

Conclusion

In Wisconsin, print primary legal sources are already starting to go online, exclusively. Wisconsin attorneys, legislators, educators, and the public would benefit from a statute that ensures Wisconsin’s laws are as accessible and trustworthy as what the federal government offers on its websites.

Electronic formats, if reliable and maintained, offer the fullest and most even-handed access for the public, including lawyers. The Uniform Electronic Legal Material Act requires official publishers, the states, to consider the most recent standards for preservation, authentication, and access. Adoption of strong, coherent UELMA legislation in the 50 states would help guarantee access to trustworthy legal information.