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May the Best Decision Win: Hackers, Worms, Power, and Digital Law

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Stop the presses!  It’s all online!

Wait.  I don’t think so, yet, assuming also that you could even afford the online version.

When “it’s all online,” which version of a Court Decision will “Rule” the Day?

Aside from the conficker worm problem (see also MS S&S Center), and you can read Mark Bowden’s new book, “Worm: The First Digital World War” for more information about that, and

Aside from Clifford Stoll’s 1989 book: “The Cuckoo’s Egg,” for a riveting and wild ride through the cyber-underworld.  (You can hear Stoll also at a TED Conference, from 2006.)

The bottom line right now is that:

If there is no official, authenticated, online or official print version of a court decision, someone has to decide which version is correct.  Who will that person be?

Will the court, the judge, court administrators, archivists all have to duke it out when lawyers and judges each bring different versions of cited cases to their trials or when they cite to different versions in their briefs?

Am I just imagining that this might become a problem?

My simple suggestion: Solve the authentication issue before ceasing print publication of official government documents such as laws and court decisions.

You don’t throw out your phone books until you have internet access, do you?  You don’t cancel your landline service until you have a reliable mobile phone, do you?  You don’t throw out your great-grandmother’s bible until – well, maybe not ever. Why would you cease publishing the correct historical record of the Law of the Land before making sure it is recorded authentically, officially, and for posterity – and accessible to all?

Most courts do not publish official online versions of court decisions. (There are few official statutes online either.)

Make sure you look for those disclaimers when you rely on digital laws, e.g. from the U.S. Supreme Court website, Information About Opinions:

Caution: In case of discrepancies between the print and electronic versions of a bench opinion, the print version controls. Moreover, bench opinions are replaced, generally within hours, by slip opinion pamphlets and, in case of discrepancies between the bench and slip opinions, the slip opinion controls….” (Link to U.S. Supreme Court website.)

Keep in mind that the first version of a case that appears online is not the final, corrected version.  But which one does Google post?  Will Westlaw and Lexis continue their editorial policy to update online cases with the official and final ones?

From the Oregon Judicial Department website that links readers to appellate court decisions:

Notice Regarding Citation

The slip opinions published at this website are subject to copy correction prior to preliminary publication in the Advance Sheets and final publication in the bound volumes of the Oregon Reports.

The Oregon Appellate Courts Advance Sheets and Bound Volumes are published by the Publications Section of the Office of the State Court Administrator under the direction of the Oregon Supreme Court and are the official published decisions of the Oregon Supreme Court, Court of Appeals and Tax Court. ORS 2.150. For citation purposes, use the official case name as published in the Oregon Reports in the manner provided in the Appellate Courts’ Style Manual. Oregon Rule of Appellate Procedure 5.20(4); UTCR 2.010(13).

Oregon law prevents us from responding to requests for legal advice from anyone except members of the Oregon Judicial Department. To understand and protect your legal rights, you should consult your own private lawyer or contact the Oregon State Bar Lawyer Referral Service at 1.800.452.7636 (within Oregon) or 503.684.3763 (Portland area).

For questions regarding the status of an individual case, please contact the Appellate Courts Records Section at 503.986.5555.” (Link to source.)

Is anyone doing anything about this problem?  Yes, lots of people are.  For example:

In Connecticut: “The 2011 Connecticut Public Act 150 §28 mandates that the State Librarian, in conjunction with other key officials, establish standards for electronic authentication and preservation no later than January 1 of 2012. Accordingly, SNELLA recently submitted the Uniform Electronic Legal Material Act (UELMA) and our local inventory to the Connecticut State Library. A dialogue about UELMA is now ongoing: one that aims at contributing significantly to the ultimate policy/guidelines result.”  [From: September 2011 AALL Washington E-Bulletin]