With UELMA, Lots of Legislation Keeps Stuff Safe

This post was written by William “Butch” Lazorchak. Butch is a Digital Archivist for the National Digital Information Infrastructure and Preservation Program at the Library of Congress.

While I consider myself largely a philosophical realist, I do admit to spending a not-insignificant amount of time practicing quasi-magical thinking, especially when it comes to dreaming about things that will make my job easier. These dreams take the shape of robots that automatically add metadata to my digital photos and “magic archiving laws” that state that every single piece of official government information created in digital form has to be:

  • Authenticated, by providing a method to determine that it is unaltered;
  • Preserved, either in electronic or print form; and
  • Accessible, for use by the public on a permanent basis.

That last “dream” is actually much closer to reality than you might think, as such a law currently exists. It’s called the Uniform Electronic Legal Material Act, and it establishes an outcomes-based, technology-neutral framework for providing online legal material with the same level of trustworthiness traditionally provided by publication in a law book. The Act requires that official electronic legal material be: (1) authenticated, by providing a method to determine that it is unaltered; (2) preserved, either in electronic or print form; and (3) accessible, for use by the public on a permanent basis.

All that daydreaming has finally paid off! But what does that mean, exactly?

Let’s take a look back at the development of UELMA to get a deeper understanding of how we got to this point and what it all means for archivists.

The 2003 State-by-State Report on Permanent Public Access to Electronic Government Information and the 2007 State-By-State Report on Authentication of Online Legal Resources from the American Association of Law Libraries made it clear that state online legal resources were not being properly authenticated and thus were not sufficiently trustworthy.

These reports paralleled a growing awareness by the Government Printing Office that new modes of digital publication posed special challenges to their mission. Because digital documents can be altered, leading to unauthorized versions of government content, GPO recognized that systems had to be implemented to ensure that digitally published materials could be reliably verified and authenticated.

This issue of authenticity touched governments at every level, inspiring the Uniform Law Commission to take up the issue of a law on the authentication of online legal materials in early 2008. The development of UELMA paralleled work on the NDIIPP-supported “Model Technological and Social Architecture for the Preservation of State Government Digital Information Project,” based out of the Minnesota Historical Society that included UELMA committee members among its project participants.

Authentication and permanent public access were the clear drivers of early activity towards a UELMA-like solution, but the MHS project participation helped educate the committee that you need “preservation” in order to ensure access.

It took a while, but by focusing on an outcomes-based, technology neutral approach the ULC was able to bring UELMA to approval at the ULC annual meeting in July 2011. The committee took great care to make sure that UELMA not proscribe any particular preservation or authentication method or technology while still establishing a digital preservation framework for official electronic legal materials moving forward.

In fact, the California Office of Legislative Counsel published a white paper in December 2011, Authentication of Primary Legal Materials and Pricing Options, that discussed five different methods of authenticating primary legal materials in electronic format and their associated costs under an UELMA implementation. The sound guidance in the report (and suggestions of inexpensive cost options) undoubtedly helped broaden consideration of the Act. The Minnesota Office of the Revisor of Statutes also published a “Prototype for Authentication of Official Electronic Record and Pricing” document in 2012.

However, the mere existence of UELMA will not, as Tom Waits says, “turn a sandwich into a banquet.” In theory, once the law is implemented in any particular state, entities that had previously been neglectful of their authenticity and preservation responsibilities will be required to address them, jump-starting digital preservation operations. This will also (again, in theory) support the emergence of a robust marketplace and common practices that will enable increased interoperability of digital information and shared methods for preservation across the country.

There are, to be sure, many reasons why states should enact UELMA: government transparency; ensuring the reliability of digital information; and securing the preservation of valuable cultural heritage resources just to name a few. But some of these reasons have primary appeal to librarians and archivists who recognize that mandating these activities (and the funding streams to support them) will make their lives much, much easier (we can all dream, can’t we?).

It’s more difficult to understand why legislators would welcome the Act, seeing as UELMA incurs increased oversight and overhead. While they might not always have the long-term preservation of the cultural record at heart, legislators do have strong incentives pushing them towards UELMA: the constant quest to save money (in this case, by implementing digital regimes that hasten the end of paper); and the pressures of emerging “open government” initiatives, including the federal Open Government Initiative. Not to mention e-discovery and data compliance issues.

Which means that if we’re building a case with our legislators to consider UELMA, we’ll have to be able to speak the language of cost savings, open government support, e-discovery and data compliance along with the story we’re undoubtedly more comfortable with, the long-term preservation of the cultural record.

Additionally, as described by Harlan Yu and David Robinson in the UCLA Law Review, we’ll also have to be clear about the differences between the technologies of open data and the politics of open government. UELMA supports both of these concepts, but different issues are at play in each and we need to be informed about the differences to eloquently state our case.

I’ve written about UELMA a number of times on the National Digital Information Infrastructure and Preservation Program’s Signal blog because I believe that support of UELMA is a place where archivists and librarians can effect real change through sustained effort. Six states introduced the law during 2014 sessions and Idaho enacted it, joining California, Connecticut, Hawaii, Minnesota, Nevada, North Dakota, Oregon and Colorado (the first). You can track the status of UELMA enactment on the ULC’s status map as well as in the American Association of Law Libraries’ UELMA resources page.

Even if not enacted, the Act stimulates discussion on the challenges to preserving and providing ongoing access to digital materials. Digital legislative materials are not going to go away. In fact, governments are increasingly moving to a paradigm where their official records are published exclusively in digital form. This is coalescing with an increased recognition of the need to effectively manage all manner of digital records at all levels of government.

This is an exciting opportunity for libraries and archives to be strong advocates for digital stewardship methods and practices. Let’s stop dreaming about it and get out there and make some magic happen!

 

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