 OK, I heard a yes. OK, great. Welcome, everyone. My name is Paul Ohm. I am an associate professor here at the law school. I'm also the initiative director for our IP and IT projects here at the Silicon Flatiron Center for Law, Technology, and Entrepreneurship. I wanted to thank you all for coming. I'm really looking forward to today's workshop. I encourage you all to work your way forward. We're going to be a slightly animate group for this room, but it's an intimate room, so I'm OK with that. Silicon Flatiron is a center that's now in its 10th year. And we've really become kind of a national leader when it comes to telecommunications law. For those of you who've heard of the net neutrality debate, for example, it was born in this courtroom at this podium in a paper that Tim Wu presented. And that's not the only contribution the center has made to telecommunications law and policy. I arrived about five years ago and it was my mission to broaden our offerings when it comes to other topics that have to do with the intersection of technology and law. And one of my passions is the thing that's bringing us together here today. And I know it's the passion of a lot of people in the room. I'm an ex-computer programmer. I was a systems administrator. And I spend as much of my free time when I'm not doing legal scholarship and teaching, trying to write computer programs to do strange and wonderful things with law. And so this was always kind of a pet project and a little passion, but I'm glad I ran into people like Carl Malamud, who are much better than I am, and turning this from a small little hobby into what I call a movement. So I think it's a really important thing today that we're doing, and I'm glad we're gonna have this conversation. Let me start with some administrative notes. I'm gonna move on to a few thank yous and then we're gonna launch right into the program. First administrative note, there are, I think, still some muffins and some coffee next door in Betcher Hall. The Wittemeyers who have donated the money for this courtroom aren't crazy about bringing food into here, but that's honored in the breach sometimes. The way we're going to do this is this morning we're going to have some presentations and a panel on the impact of the idea of putting law online, which is the broad topic for today, on state and local governments. And so that'll be the morning. At noon, we will all move one flight up right above our heads as a student cafe. You'll know you're in the right place if you see a giant brick fireplace. That's where we'll have lunch. Lunch is generously sponsored by publicresource.org, Carl Malamud's organization, so please thank him for that. Immediately after lunch, we'll move right next door to the big classroom, room 204, where we'll have an afternoon session that'll focus on the legal tools that we hope will be built once there's more availability of law online. Restrooms are at the end of the hall. I warn everyone right now that we're recording both the audio and video of today's session. If you say something, please understand that it's going to be memorialized for the public record. And if you don't want to say anything, we'll understand. We also want to advertise the Twitter hashtag hash law gov. And that's where all the law.gov conversations take place. If you have a laptop, there's a Wi-Fi password outside and we encourage you to help us build in addition to the other two streams, a Twitter stream of what happens here today. I wanted to thank some people in particular, although you all deserve a lot of praise for coming out and talking about this. First of all, we have a lot of government officials here and I'm really, really happy they could join us. Colorado Justice Michael Bender is gonna be on this panel. Colorado State Representative Claire Levy, my representative is going to be on this panel. We'll be joined around 11 by the Colorado Secretary of State, Bernie Busher. I'm also happy that Montana State Law Librarian, Judy Meadows was able to join us. Judy is somewhere, there she is. Sorry, yeah, she's also there, sorry. I wanted to definitely thank the amazing administrative support we always have for Silicon Flatirons. David Ducharm is a student who's helping run the show. Jamie Stewart, Chris Bell, Rex Head, and of course, Anna Noscazi were invaluable as always. And then lastly, it's really a pleasure. I love it when Silicon Flatirons is able to partner with other organizations and we have two amazing partners for this organization. First, publicresource.org and Carl Malamud. He is tireless, he is such a good spokesperson for the types of things we're gonna talk about today. For those of you who may not know his biography, I see a few students in the room. Among other things, he is the reason that you can get SEC filings for free on the internet. He basically shamed that government agency into putting the Edgar database online for free. So you have, and he did that when he was in his early 30s. So for those of you who haven't done anything that significant and you're already past your early 30s, Carl's a great example. And then lastly, and definitely not least, it's really a pleasure to co-sponsor this with the William A. Wise Law Library. And most importantly, with the director of our library, Barbara Bintliff, who's just such an important national figure when it comes to this conversation. So we're very, very happy that she's agreed to help us put this program together today. And with that, I wanted to give Barbara a few minutes to say hello as well. Thank you. Thanks, Paul. I'd like to join Professor Oman welcoming you all to this conference. This is an incredibly important national dialogue. And it's one that I told Carl last night, he's on the side of angels. The wings are under the jacket. But putting our primary legal resources online, making them freely available to the public, is just what's wrong with that? Absolutely nothing. But it is a process that has consequences in several different areas. If it was easy and straightforward, we could pretty much declare victory now and break out the champagne. Because most states have most of their primary legal materials online. There are some states like Colorado that have at least part of their materials online, but produced by commercial publishers. The Colorado Revised Statutes are provided by the Mickey Publishing Company. And some people have issues or concerns about private companies providing public information. So there are lots and lots of consequences. What I want to do is just put one more consequence out on the table today. So as we move forward, we can think about this in the context of permanent public access in terms of preserving all forms of the law. Because as we know, it may be superseded, but that doesn't mean it's not important. And what that other issue is, is authentication. And authentication basically means is the law that you're looking at good law. Is it trustworthy? Can you actually rely on it to decide your rights or your client's rights? And if you are worried about identity theft or hackers or authenticating your dependence for income tax purposes, which all of us at the University of Colorado just went through, then this is an issue for you. When you and I and our family and our friends and attorneys look at law online, we need to make sure that it's accurate. Citizens have a right to expect that the law, that their state puts online, can be trusted. Does anyone want to question that? I mean, we can't question that. But when you think about how electronic legal information moves from computer to computer to computer, and you think about the possibility of accidental corruption, of bad people hacking in, it's very real. And so what we need is some way to make sure that what we're looking at is the real law. Now, you know what the consequences could be. You could misacclaim. You could offer incorrect or inadequate proof. It could be the loss, benefits, rights, privileges. Malpractice could ensue. And what happens if perhaps some private firm has taken all this public information? Is there some sort of liability there? If the private firm is putting out this law as good law and an attorney relies on it. I'm not into that in terms of the technicalities. But I think that there are possibilities that you can see, that there are serious consequences for just putting something on the web and not ensuring that it's good. Now this is an all but ignored issue in the print world. And the reason is that there are billions of print copies of laws and cases and stuff sitting out there. Colorado Revised Statutes, official publication. And here's the open records law. And if you want to use the open records law and part of it's missing, you can tell. Librarians love to do that. But it's gone. I mean, you can tell. And if you want to use publication laws for appropriations and somebody's changed it, even in the back row, you can tell. Stuff has been crossed out. Somebody's, somebody's added a word. And when you run into that in practice, you can walk across the hall or go down the hall to the library or call a friend, because there are millions of copies of these. And the content is fixed once it's published. You can tell if it's been changed. How do you tell when you're looking at your computer screen? How do you tell that something's been changed? Now there are a variety of ways to authenticate legal publications. The US government publishing office is doing it right now with federal statutes. A number of states, Arkansas, Delaware, the District of Columbia, yes, I know it's not a state. Minnesota, Ohio, Rhode Island, Vermont, and Virginia all have authentication either in place or on the radar screen. Colorado is looking into authentication of the official code of Colorado regulations, which is online, but not authenticated. This is a serious issue. When a document's authentic, it means that the version of the legal resource seen on the screen is the same version that was approved by the lawmakers. And that's what we ask. Yes, there's a possibility this could add a cost. But in a society that says that it's more important that 10 guilty people go free than one innocent person be put in jail, that's a cost we have to bear if we move in this direction. So let me go on record as saying, I think this movement to put primary legal materials on the web and make them permanently, publicly accessible is fabulous. It is exactly the right thing to do. But we need to do it right. We need to do it correctly. Because if we don't, we're causing way too many problems and opening way too many doors. So before we spend a lot of time doing everything else, let's really address this issue so that we can break out that champagne and we can celebrate this wonderful advance. Thanks. Thank you, Barbara. I wanted to briefly introduce what this law.gov process is all about. You may have heard the phrase that we are a nation of laws, not a nation of men. And what that means is that our judges write down their decisions. And they make those decisions available for us to read. But if they write those decisions down and we can't read them, then we really aren't a nation of laws anymore. To me, access to primary legal materials is a basic constitutional issue. If you look in our Constitution at the federal level, it talks about due process under the law and equal protection under the law. And the Supreme Court has talked about equal protection and said, well, equal protection means that your right to vote, for example, can't be conditioned upon your having a credit card and paying a poll tax. And to me, equal protection under the law is also not possible if access to basic legal materials is preconditioned upon having a credit card and being able to pay a lot of money. In fact, the courts have agreed with that. If you look back at Supreme Court decisions going all the way back to Wheaton v. Peters in 1824, Wheaton and Peters were both reporters of the Supreme Court. And in that decision, the Supreme Court said there is no copyright for the law, for basic legal materials. And there they were talking about Supreme Court opinions. But in a series of subsequent decisions, they applied that basic principle to state statutes, to state court opinions, and even to things like building codes and electrical codes and fire codes. And my reading of those decisions is that it's really crystal clear that primary legal materials must be available. Now, I'm not a lawyer. And so I read those of the laymen. And I notice just as Bender is actually on the unauthorized practice of law commission. So I hope you'll excuse me here. But the basic principle is that the legal materials have to be available. In reality, that is not the case. At the federal level, the district court opinions and dockets are $120 million revenue stream for the administrative office of the courts. $0.08 a page, $2.40 per document. Now, what the courts will tell you is that they'll waive all charges that are less than $10 a quarter. But do a little math on that. And that's four 30-page documents. And those of you in law school know that you can't do a lot of research that involves less than 120 pages if you're looking at court documents. That same process has had huge effects on our system of legal education. We did a survey of 66 law schools. 63 of them don't let their law students access the PACER database because it costs too much. The executive branch spends $50 million a year accessing district court opinions. Even the Department of Justice spends $5 million a year to access the PACER database so that they can research cases where they represent the government. For research purposes, PACER is totally prohibitive. I run a small nonprofit. And one of our functions, we think, is to look for privacy violations. Well, we can't afford to audit a district court for privacy violations. When we managed to find 20 million pages of PACER documents using a public access facility that has since been canceled, we found thousands and thousands of egregious violations of privacy in the district court documents sent that audit to the judicial conference and to the chief judges of 30 of the districts. And they changed their privacy policies once they had actual empirical evidence. But at eight cents a page, you can't do those kinds of public interest studies. If you're a small internet startup in some dorm room and you've got a better idea for a citator or a shepardizer, you're going to need 10 or 20 or $50 million to get enough legal materials to be able to put yourself in business. And that's a huge barrier to entry to innovation. At the state level, there is a thicket of copyright assertions despite these Supreme Court decisions that are very clear that there is no copyright on the law. There is, as a general rule, no copyright at all for works of the federal government. But there's a special part of copyright that says primary legal materials at the state and the municipal level have no copyright. Despite that, many states assert copyright or have exclusive vendor relationships where the vendor is assert copyright. And again, that means that a public interest firm is unable to, for example, bring in the statutes from all 50 states, put them in a common markup, make them available for people to, for example, compare laws among different states. You can't do that without a lot of license agreements. So the basic idea of law.gov is pretty simple. If you are a lawmaking entity, if you produce primary legal materials, if you're a legislator, you have statutes. But you also have hearings, which are primary legal materials, because those show you the intent of the legislature in passing the laws. If you're a court or if you're an executive branch that issues regulations or attorney general opinions or tax regulations, the basic proposition of law.gov is that those materials should be available in bulk for free, authenticated from the source. And authenticated from the source, for example, the federal register today is digitally signed, means that if there's 30 copies out there with different vendors and public interest groups, one can go back to the source and make sure that this has not been changed. One can, in fact, compare multiple copies in different places and perhaps combine them and make a bigger database. For PACER documents, for example, we had 20 million pages. Other groups had PACER documents. And one of our big issues is, can we combine those all together and make a database available on the internet archive? That's very hard to do if the issuing agency has not authenticated those documents. And authentication is not that hard to do. There's different levels of authentication. But at the simplest, this can be a simple signature on a PDF document. No different than a rubber stamp. If you go to a clerk's office and you submit a document, it used to be they would stamp the document, received such and such a date. Now the clerk is not verifying that you said a certain thing and they're not verifying that your legal argument makes sense. They're simply saying, we got this document and you can now see that it has not been changed since we got it. And that's really what LawDoc is all about, is advancing that principle that the primary legal materials should be available from the source in bulk so that any other group can build things on top of that. Now we're not talking about having the government form some new super agency of the law that will build the ultimate portal and put West out of business. That's not what LawDoc is all about. And in fact, we've had very strong participation from industry in these workshops that we've been doing. So how do you get such a basic principle across? But we're doing this in three phases. Phase one, which we're in now, is a series of workshops and working groups across the country. And we've held these workshops in many of the top law schools in the country. Stanford Princeton doesn't have a law school but they have a public policy program. We did a two day workshop at Cornell, did a workshop at Columbia. We have ones at Harvard, Duke, Texas, Chicago all coming up. In addition, there's a series of working groups. The AALL, the American Association of Law Librarians or law libraries? Law libraries. Law libraries, pardon me. We have two past presidents here, by the way. Barbara and Judy are both past presidents of the AALL. AALL is helping on the national inventory of legal materials going through the various jurisdictions and saying what's out there? What are the primary legal materials? How much do they cost? Is there a copyright assertion? Are they available online? Are they not available online? And attempting to gather not only a packing list of what should be available to the public but summary statistics. How many states assert copyright? And so workshops, working groups. Phase two is a report that attempts to distill a lot of what we've seen in these workshops. We are running video from today's workshop. Many of the others have video. We have tweet scripts. We have a pretty good record of what's been going on. And so issuing a report. And then phase three is handing this report to a series of government agencies and saying you should do this. You should put these materials online. And here are a lot of options. There's many ways one can do these things. But at the end of the day, no paywalls, no copyright restrictions is a pretty basic thing. Authentication, privacy protection, good markup, document IDs. There's a whole bunch of other things that can happen as well. And so we're submitting those reports. The Senate has already sent a letter saying, please send a copy. This is Senator Lieberman's governmental affairs committee. The White House is listening. They view this as a very reasonable thing. We will be doing an event on Capitol Hill with Congressman Lundgren and Congresswoman Lofgren. That is the ranking member and the vice chair of the Committee on House Administration. With Roberta Schaefer, the law librarian of Congress. Eugene Meyer, the president of the Federalist Society. And Mary Alice Baish from the AALL. Now that is a big temp. That is bipartisan, nonpartisan. This definitely cuts across party lines. The Ninth Circuit Court of Appeals has granted me five minutes to brief the court on Law.gov at an upcoming meeting of the judges, a business meeting, not a formal sitting of the court. And so my message is that policy makers are listening and that this process of Law.gov has a possibility at least of reaching some fundamental change, both at the federal level and we hope at the state level. And so that's the overall process. So what we're gonna do this morning is we're gonna talk about the law. And then this afternoon we're gonna talk about Indian law since we're lucky to have a good representation here of people that have worked in that area. And then we're gonna turn it over to Professor Ohm and look at the research applications of the corpus. What could we do if this material were available? And so that's the basic kind of procedure that we're gonna go through. I think I'd like to turn it over now to Judy Meadows who is the state law librarian of Montana. Again, a past president of the AALL. Montana has been one of the leaders in putting the law online in a way that makes sense with vendor neutral citation, with a host of other mechanisms that really show leadership. And a lot of that kind of leadership has spread through a lot of the western states. And so I asked Judy to come here and give us some of the experience, not only in Montana, but a little broader. And we're lucky to have Bernie Abusher here who is the Secretary of State. Thank you so much for joining us. My pleasure. Thanks. So Judy, why don't you kick this off for us? Thank you and good morning everybody. I'm happy to be here. We have more to know than you have. Montana has a very strong populist background. And I think that's one reason why public access to information has always been very, very strong and supported by all our public officials. I'm gonna give you a little synopsis of the history of putting our laws online. Luckily, the State Law Library is the webmaster for the judicial branch in Montana. And it's a role that I have fiercely held onto because I believe that librarians are the ones who understand how people use information and how they seek it. We started putting Montana Supreme Court opinions online in 1984. A lot of people didn't have computers even then, but I was so excited about the possibilities for this that we had our first website in 84 and we started doing it. And as we put the opinions up, we also added all the appellate briefs because briefs are public records and we have a very strong public record statute. I had never intended to compete with Westlaw and Lexus. We have migrated through different software and now we provide the opinions through a database called WebEx, I think. And it's pretty good, pretty good, but it's still white bread. If somebody's gonna do powerful searching and then wants to separate something or link to a law review article, you can't do that on our website. But if you're a general citizen, you can go to our website and you can find every opinion that has been handed down since before our new constitution. We will eventually go back to territorial days, but most people litigate under the new constitution that was effective in 1972. So now we're turning our attention to other things. We also scan things for the legislature because we were doing it and thinking about it long before they did. So we scanned and made searchable of the constitutional convention proceedings so that people could figure out why our constitution is the way it is and is so strong. So that's the judicial branch. We're a little later getting into e-filing than a lot of the states because we will be the first state that will use the same software for all levels of courts, courts of limited jurisdiction, trial courts, the appellate court. And so it's gonna be very robust but a little more difficult to design. Our dockets are available online and will remain so. Our legislative branch, I don't really remember what year they put, they started their website, certainly after we did. It gets better and better and better. The Montana Code is available online as are the session laws and the bills and the typical bill tracking, sponsor tracking that most states provide. Now here's something very interesting. Our legislature likes to make money too. Now our code is called the Montana Code annotated but it is not an annotated code. It basically has little history statements under the statutes that tell you when the original law was passed and when it was amended. The annotations to the code are in another catchy title called the Montana Code annotated annotations. It's another set of books. They don't put those online. You have to buy them. They also don't put the index to the code online. When I teach legal research, I tell people I think all states have what's called a popular name table. For instance, the lemon law. Everybody knows what the lemon law is and lay people particularly. They don't memorize titles, chapters, sections of codes. They refer them to general names, the lemon law. If you did a search in the Montana Code for the lemon law, you're not going to get it because obviously the word lemon isn't in the section of the statute. So you would go to the popular name table. It's not online. You can't search it that way. I keep pushing them and pushing them. States are in financial stress right now. I just don't know if they're ever going to be willing to give up that revenue stream and it's a shame. But the primary law is available. Our Secretary of State's office was the last of our three branches to put up a vigorous website. But when they did it, they did it right and they have a phenomenal website now for searching the administrative code and the administrative register to see when the regulations are being proposed and what hearings will be. So it's pretty darn good. And from the main government website, mt.gov on the very first page, it says seeking government information. It gives you links to all of these things and it highlights in the middle of that for any legal materials, go to the Montana State Law Library. Now, so I think we're pretty cool. I had time to look at a few other states to see what they're doing. Most of them came to the party a little, quite a bit later than we did. In the Intermountain West, Utah, Oregon, Arizona, Colorado, well, Colorado's really late. 2006, the rest mid-90s. Now here's something interesting and appalling. California, you know, we always look to California, they've got more, well, they used to have more money than we had the, they have a populist tradition also. So you go to look at their cases and you can search the most recent cases, maybe this term only. And after that, you are sent for older cases, you are sent to Lexis. Lexis licenses to the court, the ability to search online for California cases, appellate court cases. However, there is a copyright on it. So sure, you can search it. You can't share it. You can't print it off and put it in a brief. You can't put it in a CLE publication if you're teaching a law class on dog law. So I just, I'm appalled, absolutely appalled. I looked at some of the Eastern states, Maine, pretty much the same as the other states, mid-90s, Oklahoma, Oklahoma, eight, their cases go back to 1890. Now, the reason for that, and I think the reason for why Montana is pretty advanced is that it comes down to particular people who have a passion to make this stuff available to the public. And these people tend to be professionals who work with the public, who feel their pain, who see their frustration, who pick up the phone and somebody says, I can't find such and such. Where is it? Where is it? And why shouldn't the public, as well as the attorney who can afford Lexis and Westlaw, why shouldn't they be able to access the laws that they are required as citizens to follow? That's my challenge to everybody. New Jersey, now let's, so those are cases? New Jersey. The New Jersey legislature has a really nice website, bill tracking, sponsors, what's happening, what's going on, but then you can't search the code from that website. You know, they just aren't thinking through the process. And here's another interesting thing. The New Jersey Supreme Court doesn't publish, doesn't put its own cases online. They rely on Rutgers Law School to do it, which is a very nice partnership, but why doesn't the court do it? I was searching Mississippi. Mississippi does not put its code online. It's not available at all. The Arkansas code may be there, but it was down all day on Wednesday. You couldn't get to it. So either the link that they provide is a broken link or they've got some computer problems. So back to my challenge to everybody in the room is, if you don't feel passionate about this, if you don't feel an obligation to your public, to your voters, then it may not happen, but the people who do feel strongly about this are making it happen. And I applaud everybody who is behind the movement. I'm gonna let Barbara do the next set of introductions because she knows these elected and officials are better than I do and will do a much better job of doing the introduction. So Barbara, I'm gonna let you take it from here. Thank you very much. I am very, very pleased to first introduce to you Representative Claire Levy, who is one of Boulder's representatives from District 13 to the Colorado State House of Representatives where she serves as the majority whip right now. Representative Levy has a wide range of experience, private practice, as an assistant county attorney, as a deputy public defender. She has a wide range of two volunteer and foundation experience that ranges from the Boulder Ballet to the Boulder County Housing Authority. And the Boulder Ballet is actually how I happen to know her children, her professional ballet dancer daughter and my tuba playing son went to preschool together. So while you may think dancing ballet to a tuba is a challenge, I'm sure they were able to work it out in preschool. But Representative Levy has long been involved in legislative and policy matters. She's a member of the, she is a commissioner to the National Council of Commissioners of Uniform State Laws, which has a project right now that Dove tells very well with the law.gov project that I'll talk about at the end of this panel if we have time. But I would like to ask Representative Levy to give us a few minutes of her thoughts about this entire process. Thank you Barbara. And one quick correction and then I'll move on. I am not the majority whip. I was elected majority whip and wherever that came from was once correct, but then about 48 hours later, I became the chair of the Judiciary Committee in the House, which precluded me from maintaining that position. So I gave it up reluctantly. I liked the idea of being a whip. But as chair of the Judiciary Committee, I get to perform that function fairly often. And I come here, I guess as a person who works officially at the state level, but in my law practice most recently, I dealt a lot with local law, local ordinances, county resolutions. And so as I listened to some of the comments that have been made here, I'm thinking about how does all this apply to very local issues and what might be available online at that level. But before I delve into that, I wanna step back. When you become an elected official and you have a background as a lawyer, some very interesting things start to collide because as a professional, I deal in a world in which everything is very rational and analytical and there are rules in place that govern what we submit to the court, what we can present to the court as fact. The terms of the debate and argument are very tightly controlled by people like Justice Bender, who tell me when my time is up firmly. And I observe, I follow his directive to stop talking. And it's a closed club. We lawyers have access to the law, we know what it is, we know where to find it, we know how to use it. And then you step into the political world and you find out that there's a whole world out there of people who need access to the law for a variety of other reasons. And you have to start thinking about how do those ordinary people get access to the law? And I think that's something that Karl Malamud thinks about as well. And I'm always fascinated when I find out, I'll get an email from somebody in Hinsdale County, Colorado, one of the least populated places in the state who's been following what we're doing at the legislature online. Because you can, you can either listen over the internet to all our committee proceedings or you can even watch our floor debate online or on whatever your local public access cable channel is. And I'll get an email taking me to task over something I've said. And so this access is a phenomenal thing and it's a phenomenally equalizing tool that's available. But there's one problem. And Judy Meadows was kind of alluding to it with the occasions in which the internet goes down or something. And that is that much of Hinsdale County, for example, probably doesn't have broadband access. And so as we begin to think more and more in terms of using the internet as a source of public information and supplanting libraries for that purpose and supplanting hard copies, we have to think about this digital divide that President Obama's looking at. We've been looking at this here in Colorado for a long time. They're, you know, remarkably enough, it's hard for us to imagine this here in Boulder, Colorado. But there are large parts of the state that do not have broadband access. And so it's important to remember that as we think about the potential of putting this kind of information online. I'm not sure also how this effort deals with archived information. And ordinances, charters that are superseded. And I simply don't know, actually. I've had occasion as I've tried to figure out whether a particular road that was dedicated by a plat to the town of Louisville in the early 1900s was in fact legally dedicated. I had to go to the early session laws over in the old law school and look up those statutes to find out what the law on annexation and dedication of right-of-way was in 1906. And then trace that forward to see whether this dedication was in fact legal. Because my clients had actually been living in a road for a long time. And the county decided, or the city wanted the road to become access to a new park. I don't know whether when we do this, we're gonna be able to keep those materials. Because we need them for a lot of reasons. So that's a question and a concern to have out there. And by the way, Colorado does assert a copyright in our laws. So, you know, do with that what you wish. Another interesting thing is, I was gonna check this as Barbara was tearing this book up. I thought, I'll bet that's an old book. And it is, it's 2008. So even librarians don't tear up current versions. That's what you think. But another little interesting fact that I learned when I joined the state legislature is that the laws we pass and the books that are on the shelf are not the legally constituted laws of the state of Colorado. And you cannot cite them in court for the law until we pass a bill every year, officially adopting these laws as the state of Colorado. And we have great fun every year pretending we're gonna kill the bill and not pass it. But just getting back to the state and local issue, and again, to the background, I have more recently doing land use law. You know, the zoning codes are regulations that are in a book. And you adopt the zoning code, you adopt these laws, and most of the time you can easily put those online. But a lot of what is legally considered zoning is on a plat map, a piece of mylar that's 24 by 36 inches in dimension. Some of these are mylar and that you can scan them and put them in. But I've had occasion to do a whole lot of research into plats that were recorded, again, in the early part of the 20th century. They're crumbling, they're handwritten. You can't scan that and have that actually be translated into a legible document. So what happens there as we transition online? I don't think that stuff will ever be online. You'll always have to go to your county, county clerk and recorder's office and ask to see the plat book and pull those things out and they can photocopy them. But those kinds of things are in some respects the legally constituted laws of whatever jurisdiction applies, but we can't put them online. Other kinds of documents, I think we need to do some definitional work as to what is the law. The EPA will issue guidances on certain regulations. And these are letters or memoranda that interpret regulations or will be issued to particular parties that may have an impending dispute over a circular cleanup action. They'll issue a guidance. Is that guidance the law? I don't know. But I think we're gonna have to look at what we mean when we say the law. So it's an exciting era to embark on and it does have a lot of potential to open up access to materials and to the tools to petition your government, to be a citizen watchdog, to do all kinds of things. But I don't think we yet know exactly how we're defining this and what the reaches of it are. I wanted to also pick up on an issue that Carl mentioned about copyrighted codes. There's a private organization. It's not for profit, but it's private nonetheless. The International Code Council, I think it's called, that promulgates certain codes. There's an international fire code. There's an international building code. There's an international energy conservation code. And they promulgate them and you can buy them and they're very, very expensive. And if you go online and you wanna look up, well, what's the latest? I wanted to have the state adopt a uniform statewide energy conservation code. So I wanted to go online and look up, well, what's the state of the art in energy conservation codes, building codes for conservation. And I couldn't access this document because it's copyrighted. It's developed by a private entity and I'm not a member and I didn't wanna fork over $450 to get this thing. And it presented a delicate issue because what I wanted the state to do was pass a law saying that every local government had to adopt a conservation code that was at least as effective as the 2003 version of the IECC. But you can't access that. There's a copy on my website if you'd like one. I suspect you would. Okay, I don't know if that's legal. But anyway, so that kind of thing will also, it presents problems and we just adopted a new version or updated a portion of our Administrative Procedure Act and when Bernie Bush talks, he might talk about that a little bit and we wanted to be sure that we were up to date on incorporating by reference online materials and how you do that. And this issue came up when the health department, for example, is adopting solid waste disposal regulations and they're gonna incorporate by reference some other body of law or some other standards from another entity. How do we make sure that when we incorporate those by reference, they're actually available to everybody and we know exactly what they are and they are legally available and they're free. And we had a version of the law going forward that said that they must be available on the Secretary of State's website, I think it was. And at the last minute, Bernie's office and I think the Attorney General's office came forward and said, in fact, we can't do this because we can't, we can buy one license for these documents and that's all we can legally have. So I think what I'm doing more than anything else is just asking questions because this is not an area I have any expertise in but there are a lot of areas in which we're gonna have to settle some questions and maybe push the boundaries of copyright and licensing and all those things. And let me just look here and see what else I wanted to say that I didn't say. And I think that's probably, yeah, that's good. Before we hear from the Secretary of State, I do wanna make one very quick point, which is we do have the IACC decision as well as most of the public safety codes for the country. That's based on the VEC decision in the Fifth Circuit which said once a building or other public safety code has been incorporated by reference by a legislature, there is no copyright on that. We put that information up two years ago after extensive consultation with a lot of leading IP attorneys like Larry Lessig at Harvard and consulted at the EFF and we have had no protests or letters. So I just wanna make very clear that it's very important that when you try to put the law online that you don't violate copyright and that this is not about piracy and stick it to the man, this is about changing the law and getting the lawmakers to understand that this information is important. So we don't violate copyright assertions lightly and when we do we're very, very careful about that process. Well and again as a follow-up to Representative Levy's comments, I hope to have a few minutes at the end of this panel to talk about the draft authentication and preservation of State Electronic Legal Materials Act. But at this point, first of all, we have a question here, Mike. If this is the time for it. Sure, we can do a quick question and then I know the Secretary of State is gonna have to leave at some point so we wanna get you underway. Okay, okay. I am very pleased to introduce to you Colorado Secretary of State, Bernie Busher and I am especially pleased to point out that he is one of ours, a Colorado law grad. He has an extensive record of service to the state including having served in the Colorado House of Representatives and as the Executive Director of the Colorado Department of Health Care Policy and Finance. He has also been in the private sector as an attorney and as a business executive. Has a wide range like Representative Levy of volunteer and foundation experience ranging from the Center of the Arts to hospital boards. I am as a former 4-H member and rodeo rider I am particularly appreciative of your service on the Colorado State Fair Board. So we welcome you to this conference and appreciate your comments. Thank you Barbara. It's been an interesting time from learning the job of the Secretary of State but I feel a touch like the character in Washington Irving's short story about Rip Van Winkle and I think that was written at the turn of the 19th century about a fellow who fell asleep and woke up 20 years later. I spent 20 years not practicing law. I practiced for about 15 or 18 years. When I was in law school I worked in the Lala Library here with Oscar J. Miller, I think probably still a somewhat legendary name around this university. And the year after that I clerked at the Colorado Supreme Court. I didn't know that when I took the job that the justice that I was clerking for had been a former PUC commissioner and had a real interest in PUC law. So very early in that year, I started having to look at the PUC regulations and at that time I think the regulations could be found in the Supreme Court Library but they weren't current over at the PUC and perhaps one or two other places around the state. Very, very difficult to find them. In the 70s when you practiced law, finding regulations was always a challenge. You could go to the agency but to find them was a challenge. Those of us that graduated then learned the West Law system and the keynote process. Now, not having practiced for 20 years, I look at where we are now and I've read more Supreme Court decisions in the last year that I've read since my senior year in law school because of the recent Supreme Court decision in Citizens United, all of the regulations that are put out on the federal level and on our level about campaign finance. So I'm relearning something and it has changed far more than I think that character Rip Van Winkle actually described. It is a completely different world. In my office, let me go through a couple of things that Mike Shea and I wanna give my credit. Mike is the head of our regulatory division and it is in that area that we handle the electronic filing of rules. We were one of the first states to go electronic with our rules and as I understand, because I wasn't there, in about 2003, I believe, we contracted with a company by the name of Conway Green and they took all of our print rules and this is right out of Thomas Friedman. They took the paper versions, sent them to India and someone in India keyed them all in to the system and that was, you know, it was that, although it was electronic, the putting of the information into the system was manual and that's only, you know, seven years ago. Now we are working to allow all of the departments, of the other departments of state to electronically transmit their rules to us which we publish and so the process now is dramatically more efficient, more transparent and folks can get it. We provide this information free of charge to LexisNexis and they, of course, then publish the unofficial version of the rules. Let me just mention one other thing that I'm fascinated with and this is because of the other work that we do in my office but we are the partners with the county clerks all over the state and that partnership is based on our joint efforts to run elections every year but because I'm just a terrible amateur historian, when you go into the county clerks and if you practice law back in the 70s, you spent time going through the grant or grantee indexes, you spent time going through maybe even marriage licenses or the birth and death certificates and you realize that there's an extraordinary treasure trove of historical documents and as I've been going around to the county clerks over the last year, I've been talking to them about their efforts to put all of those documents online. I was down in Pueblo perhaps three weeks ago and so I asked Bo Ortiz, the county clerk down there, I said, what do you have? And he says, oh, we've got great stuff and this is stuff that should be shared but the original deed to the county courthouse property in Pueblo was signed by Ulysses S. Grant and they have that original document and they have the marriage certificate and the death certificate for Kid Carson but they're just in their normal records and he says, if we had time I could dig those out and show them to you. Well, you know, there was a time when attorneys did abstracts, you know, you built your chain of title and you had to look at each document when you really got into this and did the nuts and bolts. I think that was a wonderful time, it was tedious but there was a romantic nature to it. We are going to see all of this available here soon, I think with good access across the state. That has a wonderful thing but I for one have a little bit of nostalgia for the good old days so. I think I'll stop there and I know that's very brief. I'm more interested in hearing where we're going than anything and again I want to give credit to Mike Shea who is here and if anyone asks me a question, I'm going to direct it to Michael, thank you. I am very privileged to introduce our fourth speaker, Justice Michael Bender of the Colorado Supreme Court and again, I am very pleased to claim him as one of ours. Justice Bender graduated from the University of Colorado Law School and has been a strong friend of the school, has been on our law alumni board, has been an adjunct faculty member here and we also let him teach at Brand X and Denver but he's ours, don't think he's not. He has some very interesting responsibilities at the current time including co-chairing the Colorado Supreme Court's standing committee on the rules of professional conduct and the unauthorized practice of law committee and I'll tell you my license is inactive so I didn't do it but we are very pleased to hear his thoughts and his comments about from the judicial side of our three branches of government, Justice Bender. Well thanks, I feel pretty much like the dinosaur in the room especially after hearing Judy say, so I thought I'd tell you a little story when I spent 20 years in practice before I was appointed to the court in the beginning of 97 and I had and that time there wasn't Wi-Fi at least that was recognized and I had my little AOL account where I got Westlaw through the telephone and any event so I went up to the court and I had to first of all there was none of the Supreme Court justices had even computers. Now the clerks did have computers and they did use Lexis and Westlaw for research but there was no one ever used a computer there's no email system, there was no electronic anything at least as far as the Supreme Court was concerned and so I had to pay for out of my own money to get a phone line to get my AOL and we had a little conference where there's a change in the court there were four relatively new members in the last year and a half and so we had a little lunch or sort of discussing new procedures and introducing us on that sort of thing and this is before Bernie Bercer was head of the Joint Budget Committee but the chief at that time was extremely concerned about the cost of everything so we had a brown bag lunch in a free place a couple of blocks away and it came out that the court was actually interested in the majority of the court that there were some that weren't actually having computers and getting email and so forth so eventually we kind of have transformed and I think what's happened is that and it's kind of sad, I think the problem that I see it from the judicial perspective is that the resources not so much for electronic data or digital kinds of transmissions is a focus it's just a fundamental nature that there are just too many cases not enough judges and not enough employees throughout the state particularly in the metropolitan areas and so cases are overloaded judges are overloaded, they're huge lines and anybody that's gone past the metropolitan court in the winter has seen people outside so the first task that the judiciary started on which I think they've done I think as far as I know as well as any other if not better than any other state is to actually have a legitimate intranet system and have an entirely digitized case system that is very, is excellent and we do have that and unfortunately we're in a debacle with Lexis about whether or not we should run that or Lexis should continue to run the public access to our court registry in my view it's clearly something that we should do ourselves and provide access at a much cheaper rate and a better system than Lexis does now again with all due respect to the Lexis representative here in any event but our energies were devoted along those lines and it's only more recently that we got on board with a legitimate website by the way we were selected as one of the top four websites our judicial website in the country but that only happened about a year and a half ago that we changed our website and I thought that we were doing really well because you can get a Supreme Court opinion back to 1998, you know I thought that was pretty cool now you can only get that and we're slowly, slowly adding stuff from our website it's free and there's an internal Google search system which is certainly nothing like Westlaw Lexis but is certainly okay as far as the public's concerned you can search for judges and I have to think, I had never thought about the authentication problem so I guess I'm still a dinosaur I mean I think a lot of my critics would like it if someone corrupted my opinions but I, you know, we put up our clerk's office puts up our opinions and same thing with the Court of Appeals and it's certainly not done manually so you will have to assume that the opinions are kosher now but whether or not they can be tampered with I don't know so I'm going to check on that one of the things that we don't do, which I want to do and I'm depressed that we can't do and I told some of the judges that I'm going to do but we can't do and I told Senator Representative Lee that I watched her, I think it was yesterday or a day before yesterday anyway, it was very cool I happened to just turn on my computer and decide to watch a little house debate and there it was, you know, on video I mean, I could see the whole thing, it was very nice and I knew that there was streaming electronically for sound but not video but there is and it's very good and we have now finally, we have archived for the last couple of years, you can hear our arguments and you can still hear the current ones but there's no video streaming and one of the reasons is, the main reason is there's just not enough money for us to have that we certainly have the capacity to do that and when we have our new building in three and a half years, we will do that but so I think that in my view it's very important to have total and complete access in every way as far as the judiciary is concerned and also with respect to the filings we have a modest system of civil filings which is also run by Lexus which in my view is expensive and outmoded and I think that we should, we wanna develop over time to have an e-filing system for the criminal cases as well and it seems to me that both those things are only a question of time for there's real public access and it would be a much, there may be a cost but not much right now the only way you can get a trial court opinion or a pleading is through Lexus and you have to pay for that and you, the only way you can get a copy at the docket, the registry of actions not the actual material is through one of three where we have public vendors and you also have to pay for that which I think is outrageous and certainly against any kind of public interest and public access, we have to rethink that and be much more aware of that so I think that we have a very good internal system from my computer I can get any case I can pull up any case in the state, state case we don't have access to PACER I've had to, when I wanted to get some stuff from PACER which is the federal system I've had to call all kinds of people and get special permission so I don't have to pay a fortune of course we can't do that so I think that we're coming around and aware of the need to create much much better public access but it's been a slow and the primary thing right now is not philosophy at all but funding and a priority basis that we have to serve our people the judiciary is composed I think it's something like Bernie you may know I forgot the percentage but it's something like 88 or 89% of people and so every time we have these ratcheting budget cuts because of our constitution which is the only constitution that has those limits in the country we lose people and we therefore can't do our fundamental basic service and it's a tragedy in my opinion and for those of us that I can see a few white hares even around and seen courtrooms over the years the lines have gotten longer the dockets are getting longer and people are used to and accustomed to doing more with less which I don't think is the way that system of justice should operate but anyway I'm delighted to hear your good work and I think that the points that Claire has made are fascinating I never really thought about having everything online which would be wonderful I mean all kinds of things I'm certainly in favor of it and I certainly to the extent that I'm on the court will do my utmost to further that I don't see any philosophical objections I think as far as the court's concerned we're 100% in favor of all these things it's really a question of money. So thank you. Well thank you Justice Bender for pacer access you know you can petition the federal judge for free access well I just made a couple of phone calls they will require that you don't redistribute the documents as a condition of your free access well they gave it to me but it wasn't easy I think what we'd like to do now is take a few questions from the audience and comments from the panel and then we're gonna close before lunch if Barbara can discuss the uniform law commission of which she is one of the reporters I think that will be a useful conclusion but let's open this up if there's any questions I believe the gentleman here had one. You said there was no philosophical objection to releasing just earlier this year there was a head mistank about streaming the proceedings from the copyright case that just the second came out of life that I just the second forgot but. Copyright case in New York. Oh I'm talking about the Colorado State Judicial. Well I understand but not just in New York that was a specific instance but just in general there's been a lot of resistance to for example televising court proceedings from real time. Well that's true, that's under the federal. But that's got nothing to do with the state. No, no, Colorado is not, in fact there's a special rule that they have to apply which we grant totally and on big arguments for example the Supreme Court's permitted total TV access and we would do video streaming but we just don't have the finances and actually we're moving so the courtroom that we're going into it's a makeshift courtroom in the Denver Publishing Building is too small to really do video and has these big columns and that sort of thing so it wouldn't work but you can hear us and it's archived you can click on it on our website. Right, right, there's nothing to do with that and then it's well and then the equipment. The Secretary of State was chairman of the Joint Budget Committee which is probably the most powerful one in respect to. We tried to change all the statute to say powerful Joint Budget Committee. That was pretty powerful. They control the purse basically in the state and so the real issue is money. Whether or not we have the resources to do that but and I just inquired because I knew I was gonna come up here and I really thought it was very cool watching the legislature. I really liked that, that was terrific and I couldn't see any reason why we couldn't do that for oral arguments, be great. There's absolutely no reason not to and unfortunately I was told that hey, we can't afford the equipment which would be, I don't know, like maybe $20,000, $30,000, something like that, right? I think when we did it in the legislature we spent about $50,000, $60,000. Yeah, but that's a bigger. It is a bigger room. You know, it's a bigger deal. Anyway, you know, when we compare to whether we have one clerk or not to service people we couldn't do it. But also as a practical matter that I was told that we can't do it in our little, we have this little teeny auditorium that we're not gonna use as a courtroom for three and a half years. It only seats 34 people and it's got four big columns in it, so. But anyway, but there's no reason we should, we absolutely have to do that and we'll do that and should do that. Among others, yes, none of that, none of that is at all. You know, let me just follow up though. I think there used to be a philosophical objection to televising oral argument. And I had the opportunity back in, I think it was 1985, to argue a case in front of the Supreme Court over in the old building. They used to, I guess they still do take the court on the road. The old law. Oh, oh, oh. And it was a case that had a lot of public interest and it was a pretty widely known child abuse resulting in death case and the TV channels did wanna come and televise oral argument. And there was quite a lot of resistance to that and this rule was not in place at the time and the court kinda scurried around and furrowed their brows and figured out whether this was somehow gonna jeopardize the public interest in some way and that oral argument actually was televised and I believe it was the first time they had allowed TV cameras into an oral argument. And I think the attitude at the time was that these are solemn dignified proceedings and they didn't wanna turn them into some species of public entertainment. Salacious. Yeah. But it was, I think for many years there hasn't been a lot of resistance to that. The idea is that this, well, and I don't know that the United States Supreme Court. They're posted. No, they still. But they believe that it would somehow detract from the dignity of the proceeding. Right, you can't take a camera in the federal district court. Yeah, I mean it's... But I think that those are vestiges. Yeah, that's melting away. But the whole idea of electronic, they say lawyers and judges are 100% in favor of progress and 1,000% against change. Certainly true. That's very good. Okay, so you're gonna come in in the back? Sure. Being conscious of what you just said in terms of the budgetary limitations of the court and issues of authentication, I'd like to suggest one baby step that the court might be able to take today that could improve things. Okay. And that's this. By the way, this is a former clerk of mine. Oh. Maybe you've heard this before, but I don't think you've ever heard of it. Right now, if a citizen goes on to a website and gets a three-fold or three-fold case, they can read it, they can cite to it, they cannot pinpoint sites to it. Because under the current expectations and rules, the pinpoint citation is to a page number. And that page number is in the Pacific Second, the Pacific Third Quarter, published by the West Company. So if you want to pinpoint sites, you have to get the commercial version. If the court were to start to insert paragraph numbers in the text of the opinion excellence, put the paragraph numbers in the text of the opinion itself, you don't have to go to a full uniform, full new citation system, a universal citation yet, but just paragraph numbers in the text. Again, if you pull that case off your website, if you pull it off an advocacy website, off an nonprofit website, if you pull it off the Lexisville Westlaw, that indicator will be on there. And anyone will be able to cite not to an arbitrary page number owned by a foreign corporation, to wrap up to the specific unit of structure of paragraph. You know, people are willing to permit citations of paragraph numbers. Derek, to respond to that, actually I actually looked into that before you went to work for me. And we consider it, the real problem is I think that violates the copyright, the contract we have at West. I won't swear to it, but my best memory is that we could not go to any kind of universal system of citations where we number paragraphs because we still have a very cozy relationship with West with respect to publication and so forth. So, but I don't know, I'll check into it. I mean, I certainly would like to do that. And when you said, what I don't understand is what's the difference between a universal citation and just numbering the paragraph? Yes, in a hermit world, next year the first case you were courtesized, we have this citation, 2011 column period space one. That's the name of the case. Column space, paragraph number, whatever. None of the long citation, any second, volume number, all of that stuff. No blue book? That's the whole thing, 2011 column one, that's the first case you hear, paragraph seven through nine. There is a very good, there's a wonderful double A, double L study on uniform citation. I think the difference is paragraph numbering is a start. If the court were to accept briefs that contain those citations, that's a further step. And there's a whole series of recommendations that then I know Judy and Barbara were probably intimately involved in the creation of that study. But I could give you a little more information on inserting the paragraph numbers. I can't remember what year our court adopted uniform citation. I don't know, 98, yeah. What is that about when we were doing that? Yeah. Both Lexis and Wesslaw said no problem, no problem. And actually had a small publisher in Helena who was publishing the print volumes for us at that time. And they just inserted the paragraph numbers. It's not a problem. And I don't see how that could possibly. So those are in the Wesslaw? Yes, and I don't know how it could interfere with their copyright. Well maybe I got that. I really don't. Well and there are a number of journals that now have paragraph number. Yes. And those are in Wesslaw and Lexis with the numbers. I mean it is moving into the mainstream. I'll look into it. There's a wonderful summary of uniform citation by Professor Peter W. Martin, title of the paper is Uniform Citation. And he does an overview of Oklahoma and Montana and many of the others. We had a couple more comments I think there and then you and then there. And then we're probably gonna switch after that to the uniform laws. My name's a question before they come in. First of all, thanks for sharing the benefit of your experience that day. With respect to where the galleries are, for all this is probably directed first to you and maybe a jump over the panel. It seems to me that the goal of transparency and putting law into the public is probably not without some boundaries. And I'm wondering with respect to the broad vision of your project, where do you articulate principles that separate what should be in the public domain versus what might be just part of the creation of a law process and that would actually have an unintended consequence of perhaps chilling. So for example, a Supreme Court Justice conference between justice and structure, he said that he probably wouldn't be enraged by having a strained on TV. Can't be, that's confidential, that's not. That process is confidential. In terms of as you're starting to make decisions about what about the law should be out there versus what might be part of the process that should, how do you articulate it? There's black and white and there's gray areas. So for example, I think everybody would agree that a Supreme Court opinion of the United States is must be available. I would argue that any brief submitted as part of that Supreme Court process probably ought to be available all the way going back is an attorney general opinion considered primary legal material. Well, those are held with great deference by the courts but they're not the law, I don't know. And I think that's one reason we're working with the AALL, with law librarians across the country. I think the principle that the black and white, obviously confidential discussions of Supreme Court conference is not available to anybody today. And I have no problem with that. There's sealed documents that should not be available for my district courts. The big issue is when they are available if you have a credit card, but they're not available if you don't have money. Well, there are a lot of issues. Wait a minute, there are privacy issues. Absolutely, like social security numbers, whatever. Sometimes addresses, especially in domestic relations to solution cases where you file affidavits of your assets and liabilities, things of that nature. So there are issues of privacy, juvenile matters, dependency and neglect, that kind of thing. And they're huge privacy issues that have been neglected. And they've been neglected under the theory that this information's available on West and anybody who has access has a credit card and is a lawyer and so we can trust them and so we're gonna ignore these issues. And what we found when we were able to access, in particular the Pacer database, were huge numbers of social security numbers, names of minor children, names of informants. There's a site out there called Who's a Rat in which this gentleman goes out and he finds the names of informants buried in Pacer documents and he puts them on the website and people in prison access this site and they figure out who in their cell block is an informant and then they go kill him. And this is obviously not a good situation. And so one of the things that is particularly important, in fact in one of our upcoming seminars, workshops, we have representatives from Department of Justice and others discussing the privacy issue in great depth is if we are putting our primary legal materials online, we can't pretend that simply having a credit card guides privacy. The courts and the other entities that publish those materials need to really think about the privacy implications of what they publish. And so that's a very important aspect of that black and white and gray area. But there's also, I think we have to differentiate between what is a public record for purposes of Colorado's Public Records Act and all states have them and what you can access through FOIA, what's a public record, versus what is primary legal material, which ought to be available online. And I think some people believe that anything that you can legitimately request through a public records request ought to be online. And I would disagree with that. I think what this project is about primary legal material and I'm not sure I yet know exactly what that is, but I know there's a difference between everything that the public can request and everything that would constitute primary legal material. Yes, and this is different than the overall transparency movement. This really is about the law. I do want to caution you, those privacy problems really fester. When we brought in the congressional record, for example, we found 500,000 social security numbers in the congressional record. So these issues are pervasive throughout all our public documents and really do need to be confronted. Let me just jump in here. Because there's a couple of other pieces that I think are interesting. In 1975, there was almost no legislative history in Colorado. A bill would be passed and finding out what the thought processes that went into that and drove the legislation was almost impossible. It's much better today, but it isn't as good as it could be. And this can be hugely important. A couple of years ago, I worked on the Arbus Cal Bird Limit, which was the 6% limit that limited the amount of increased spending. And it had four exceptions. And nobody could find out where those exceptions came from until we got the conference committee report and saw that it just was an idea by one legislator at that point. And that changed the way that everyone looked at that discussion. In the whole legislative process, there still is a lot more that could be archived, made available to help understand how legislation goes about. In the other parts of my office, we're fighting this privacy issue a lot. There's a case working its way up, I believe it's in the Ninth Circuit right now. A Doe versus Reed. And in that case, the question is whether or not the individuals that sign a petition to put an issue on the ballot should be confidential. And that becomes a crucial issue when it's a controversial issue. In this case, it was a gay marriage. One side or the other publicized everyone who had taken, had signed the petition. The houses were picketed and so forth. So chilling effects can happen in a lot of different ways here. We've got one piece of litigation that I'm watching, not in Colorado, trying to get public disclosure of all of the images of ballots. Fascinating. There's a county in California that put all of its ballots online. Voted on ballots. Voted on ballots. With the theory you can't identify the individual who voted, but that verifies that, in fact, the balloting process was good. Check on the butterflies. Chads. The areas of privacy and public records is very, very fluid in a world where the public expects something more than accountability. They want the ability to check it themselves. That's fascinating. I chaired our court's commission that developed new rules on privacy and public access to court records. And we grappled with that. The topic of judicial work product through many, many meetings and finally decided that that was not public. What do you mean by judicial work product? Work product, work product. Oh, it could be the little notes that the judge is making during a trial, this guy's as guilty as hell or what a jerk or, you know, but Montana has one of only two states where privacy is protected in our constitution. But the rub is that in article two, sections nine and 10, the public has the right to access information. All government information is public privacy rights. The privacy rights are guaranteed by our constitution. So how you find that balance is, you know, if it is the most difficult thing you can possibly do. Thank you guys so much for taking that time to be here today. I wanted to ask you a question and maybe push back a little bit on the authenticity problem. I think it's a very serious issue, but I'm not convinced from the demonstration we saw earlier that it's not a problem now. And I think maybe an analogy to election fraud is when we're here. If I'm gonna defraud or if I'm gonna hack the Colorado revised statute, I'm not obviously gonna go and start tearing pages out of every copy of the statutes or start marking the pages. I'm gonna go try to find somebody at the publisher to edit the digital files. And what I'm wondering is, is there an audit process? Is the legislature audit what's going on with the publisher? Is that digitally signed and to end it? And I don't know, but I'm guessing the answer is no. And so I guess if it's a serious problem in the online space, it's really because it's a serious problem in the offline space. So in that sense, I think we wanna fix it, that's great, but we shouldn't let it be an impediment to getting access to these materials online. It should be hand in hand to getting the materials online. Every state and the feds have different systems for internal security, firewalls. Most places have a gold standard, a theoretically uncorrupted and uncorruptible hidden file somewhere that you can go back and check and make sure that this was the actual language. But usually within the state system, it's not so much of a problem because there are firewalls and security protections and audited security firms and that kind of stuff. And I assume that the Colorado legislature has something to that effect. Most states have something to that effect. It's when it hits the public, when it moves out past the firewall that's truly is where you need to be careful about what you're using. So up until the point that it is released to the public and becomes that statute or whatever, theoretically states have that already taken care of. So no, it shouldn't be the kind of problem that would be occasioned by instituting an entire security process from scratch internally. Does that kind of address what you're thinking? Yeah, I guess my point is it seems like it should almost be easier to verify digital materials because they can be signed than it is to verify permanent material. Thank you. And if you would put that in writing, because the big argument we get over and over is, oh my gosh, it's so hard, it's so expensive and yet it's being done all over the place. It shouldn't be hard. You're right, you're absolutely right. It should not be an impediment and yet it is being used as an excuse. And that's what we find over and over. One more question here and then we're gonna actually turn to this question of authentication and the Uniform Law Commission. So your question, sir. Just say some of your thoughts are on the ability, once the laws are published, for either the public or lawyers either, and not in terms of authentication, if you're not certain of the changing of that, but in terms of providing opportunities for lawyers like Barbara Schoed, of the rigid text being commented on or changed, see this regulation and we're making suggest the changes, what about the opportunity for getting feedback from a broader spectrum of people on the laws and some kind of electronic format? Is this like a Wikipedia sort of, anybody can come along and... You can use a lot of the comments. A lot of the comments. You can put it in this language from the original text. Well let me talk about the federal level for just a second. I did one of the papers for the presidential transition and my paper was about the office of the federal register. And in there I said that, gee, if we made the federal register available, bulk access in XML digitally signed, that would lead to all sorts of spin-offs, all sorts of good things would happen. And in fact, the administration did release the federal register. The price went from $17,000 down to zero. That led to a whole series of nonprofits and for-profits taking the federal register and building things. There's one called govpulse.us, which is very cool because you can pull up a map of your area and it'll show you any federal register notices pertaining to your area. Department of Interior is procuring someone to do concessions in a park. The building and the Bureau of Land Management is about to sell land or allow grazing. And you can pull that stuff up. Now what's very interesting is that when you put the law online, there's a couple things that happen. One is innovation out there in private industry. But the other is better efficiency often in government and what the office of the federal register has found is a lot of these innovations, which include annotation and searching and dates and calendar notifications, they're beginning to incorporate in their next version of the federal register. And in this paper for the transition, I borrowed some ideas from Ed Felton at Princeton and some of the others. In which they said when government puts data online, they should do three things. First thing is you obviously determine whether it's public or not. But if it is public, you make it available in bulk. That means anyone else can build a website out of it. You then put what's called an application programming interface and an API. And that's what you use to embed a video from YouTube onto your blog, right? And so an API would allow someone to embed a statute or the hearings or the video from the hearings in their blog. And then finally government builds a website because one of the things that government has to do is provide access to people. But by doing that in three levels, perhaps somebody out there builds something, some widget, some tool using the API and government's able to use those advances and make their own sites better. And that begins to address some of the issues of making it available on the net. Now, Representative Levy's comments about making it available to everybody, I think is particularly important. And one reason I think we make bulk laws available is because that also allows cheap print production. The Attorney General opinions of California cost $2,500 from a vendor. I'm in discussion with the Attorney General's office about publishing a version for $0 as a PDF document, but also a PDF print-on-demand service that would cost about 50 bucks if you wanted a complete set of the things. And I think by unleashing these bulk materials, you do begin to address the issue of innovation and better dispersion of the data. But I'm kind of wondering, I'm not sure that was interest, it was interest at, but I'm not sure that was what you were asking about. Are you? I'm wondering why the department is an opportunity to public comment and part of this take advantage of the variety of technologies that go beyond just simply static publishing base. And the role of the public comment would be what? For a variety of purposes. I think that the benefits of the laws being refined and improved over time, from not just within closed doors of the legislature, but also by being able to get a broader perspective of opinions and start to use it for getting public comment in a variety of ways. Because that then collides with things like the Administrative Procedure Act, where there's a prescribed, whether it's at the state level or the federal level, through any of the regulatory development processes. There's a prescribed time period and method of comment on everything from NEPA documents to any regulation that an agency governs. And one of the benefits of that prescribed process is that everybody knows what's the period of time within which to comment. It's open for 120 days, 180 days, and then it closes. And so everybody has an equal shot during that period of time. And that's the body of comment that's gonna be considered in adopting a regulation or not. Versus a kind of an open free for all while that sounds more democratic and open. And in many ways it isn't. Because who gets the last word? And so I think you have to balance this desire for more access and comment, at least in kind of the development of the law process with a process where everybody knows what the rules are. There may be an update, that's a way to update the prescribed rule that they can manage in the electronic format. Absolutely. Yeah. There's also rules and how it actually works. There's a couple of interesting articles about how re-key players who know the blogs and the electronic sources that are served by the clerks in the Supreme Court actually kind of keep are able to bypass those limits. Because after the additional sources are closed, they can still reach the clerks directly by making blog posts in strategic places or causing articles to appear where they know they will be seen. And so it's... Would you explain that? Not necessarily as an anti-democratic issue, but thank you because... Would you explain that? I don't quite understand that. So you're a... I mean, I read the Scotus blog and all that stuff. But what are you talking about? So you're... Let's see here. There's a case before you, there's a prescribed set of amicus that can submit briefs to you. Sure. They arrive through the standard procedure. The process closes and now we're supposed to be done. Except that I happen to know that one of your clerks also reads, let's say the Bollock conspiracy. And so I get a chance to make postings to Bollock that I know will be seen and perhaps considered by your clerks. Those postings aren't subject to the various requirements or transparency and standards that come with amicus briefs. There's no... It's not part of the public record. Nobody necessarily knows that your clerks are seeing that. There's no opportunity to rebut. Yet my information does potentially influence that process because of the fact that I know how to reach your clerks. It's kind of a little, you know... Another point for the APA, actually in Colorado's version of it, there is an installable making process that can split an agency and initiate before a formal one. So it would be kind of what you're talking about. The agency's contemplating in making administrative rules on elections or on whatever it happens to be. But they don't want to do the formal rules yet. They want to get people's opinions. You can publish this. It's not a formal... There's no formal process for it. And that's an advance of the actual formal process. So it actually can actually even potentially help in the fact that people then know that role-making is coming and can then make formal consideration. It's free. Can I say something? You know, I think this is a... Thinking about your question, I think it's a generic problem with digital information, period. You know, we're having the same problem with jurors, Googling and all that and finding out information. But I think fundamentally all of the decision makers, whoever they are, whether we're talking about legislature, or elected officials or part of the executive or the judiciary, are gonna fundamentally apply their own value system. So there's no question about it that I'm influenced by, you know, something that happened to me when I was in high school for good and sakes. And so I read those blogs. So I imagine on some, you know, subconscious level they impact how I think about stuff. But they're not part of the formal proceeding. I don't think that's really a negative because I think it's nothing more than bringing to bear the full forces of information that got you there in the first place. You know, I mean, Chris. It doesn't have to be a negative. I was just following up on your comment that ADA prescriptions specific procedure and that there are actual things outside of the prescribed procedure which do cause the information to be met. There's a whole series of slippery slopes ranging from privacy and authentication to what is the formal process? What are primary legal materials? And that's one reason this process is involving a workshop series in 10 major law schools and a whole conversation, right? Rather than simply saying, gee, the law must be available. We're done. Let's pass a law. That's I think why we're going through this procedure. I'd like to give Barbara the floor to talk a little bit about the Uniform Law Commission. I know Representative Levy is also part of that process. And I think it's an important process you've been going through. And I think that's a useful kind of conclusion of this morning's session. Thank you. Thank you, sir. Thank you, sir. Well, way back in the last century when we started putting primary legal materials online, it became almost immediately apparent that there were a lot of issues that were raised by this. Obviously continuing access, archiving, authenticating, lots and lots of issues. And states very rapidly transitioned to this electronic environment. Now I'm not saying states declared the materials that they were putting online official, which of course we know is a different distinction, but states were putting materials online and more recently began to declare them official. And this is something that law librarians as information, legal information professionals were probably more aware of the scale and the scope and the potential consequences than probably any other group. And so this entire Uniform Law process began with a national conference on authentication and permanent public access convened by the American Association of Law Libraries in 2004, I believe, or five. And it was based on a couple of state by state reports on permanent and public access and authentication of legal materials. And they're available here if you would like to read them. I will not be ripping these up. So there was all this background information. There was this rapid transition to the electronic environment. And so AALL convened this and brought together reporters of decisions, legislative drafters and revisors, judges, attorneys, legislators, members of the executive branch. And there was a conversation quite similar to what we're doing here today. Pointing out the issues, talking about the concerns, identifying avenues and ways to approach it. And the major recommendation that came out of that conference was that the National Conference of Commissioners on Uniform State Laws in Cusill should draft a uniform law on authentication, preservation and permanent public access. Now you know the Uniform State Law Commission in Cusill has been around for 115 years or so. And its purpose is to draft legislation for state adoption in areas where standardization would be useful. And so there are uniform laws on recording title and the uniform probate code and custody and adoption and areas where it makes sense for there to be state laws on particular topics. And so that's how the study committee for a uniform law on authentication and preservation of state electronic legal materials was formed. I was appointed to that study committee following a glass of wine with the executive director of the Uniform Law, just a guy I've known for years and years, yes, as the representative tells me, I now know. So as part of the study committee, we brought together code commissioners, legislative drafters, reporters of decisions, attorneys and came up with a draft uniform law, presented it to the conference and they vary quickly. And as I understand it, unanimously agreed that there should be a drafting committee for a uniform law on these topics. Now we have kind of a mid-level draft. It's not our first draft, it's certainly not the last. We think it is an elegant piece in its simplicity and its vagueness, it's great legislation. The perfect statute. The perfect statute. After participating on the study committee, I was asked to serve as the reporter for the drafting committee, the reporter being the sole charged with actually bringing together the comments of the 20 commissioners and observers and trying to pull it together into a single document. I will tell you, it is the most challenging thing I have ever done in my life and I will never do it again. But what we have tried to do is put together a draft or a uniform law that will be hopefully introduced in all 50 states. We also hope that it is adaptable by municipalities, by counties, by Indian tribes, by any kind of law making, rule making body. And what we have tried to do is define what the legal materials that are covered are and we've pulled out laws or statutes enacted by the legislature in a specific session. What the print analog is, the session law, codified law, which you know is the subject arrangement then of the law where the session laws are put into the subject organization. State administrative rules either adopted under the state APA or from independent state agencies that are not covered by the APA. And then we kind of get into the optional language. Decisions, appellate judicial decisions or other judicial decisions that have presidential value because we understand in many states the legislature cannot tell the judicial branch what to do and they wouldn't obey anyway. So. That's not color actually. Except for the purse strings. Well, there is that issue. We have our ways. But we've tried to go through and kind of answer your question Brad about what's black and what's white. And we think we have the white and we give of course any other record. We give you the gray area here. So the states do have some flexibility. And then we talk about appointing an official publisher so that the official publisher for each one of these types of documents then is charged with a specific duty to provide for authentication, to provide for permanent record keeping, which includes migrating it to new electronic forms as necessary and to provide reasonable public access. And we're working on at no cost. We're not quite there yet. But this is a process the old saw about you should never see statutes or sausages. Yeah, true. Very true. Because it truly is a line by line word by word, letter by letter, comma by comma process. These are professional legislative drafters for the most part. And they understand the impact of every letter, every mark, every space. What we hope to do in this process, we hope to have a first reading in front of the conference this summer. So we will have a pretty good draft and all these drafts are available at the University of Pennsylvania's Biddle Law Library website. And I have the URL if you wanted here. Following our first reading, we will go back of course to the drawing board and continue to revise it and have a second reading. We hope the summer of 2011 in vail, so you can all come if you wanna come. At which point we hope the conference approves the draft and then it goes to the American Bar Association. And that's a step most people don't know that after in-cusil drafts, then the past in-cusil documents go to the ADA. Is this the Board of Governors? Yeah. And it's an up or down vote, but once the law is approved by the ABA, then it will be introduced in the various states. Now, Representative Levy is one of the commissioners from Colorado on the Uniform Law Commission, may have some other comments or thoughts about this process, but it is one that dovetails beautifully with the law.gov process. And I think it lends tremendous credence to what's going on here as your work does in this process. And I think we are perhaps catching this issue just in time because if you're old enough to remember cassette tapes or eight-track tapes or the Sony Betamax, you know that information in one format is not, it deteriorates and if you don't migrate it to a new format, you'll lose it. And so the permanent access part, the permanent preservation part is really key to this. Questions, do you? The only thing I would add is Nucuzal doesn't approve something for drafting unless a compelling case has been made that there is a need for uniformity. And state, nationwide. And I think when Barbara talked about kind of getting to this issue just in time, if you don't do it soon enough and states go their separate ways in how they're going to do this, they become very invested in that and the more they're invested in their particular way of doing it, the harder it is to get uniformity. And I think this is a prime example of something you really do need to have uniformity in. So, because we do so much research across state lines but the Nucuzal drafting process, I have to say really is a fascinating process. Absolutely, and these issues, yeah. These issues definitely cut across a lot of different levels. One of the impetus for the Law.gov movement was the realization that we have a president of the United States that would understand this issue in about 30 seconds. We have an attorney general and a solicitor general likewise that will understand the basic issues. In fact, we've had a very good reception at the Department of Justice. They really understand these issues are crucial. And the hope here is that perhaps there can be some national leadership as well as uniform state laws and a variety of other pretty fundamental reforms in how our judicial system works. So we are breaking now for lunch, which is gonna be upstairs in the student cafeteria. We will start precisely at one o'clock with the discussion of Indian law. And the reason we start precisely at one is so we can get you out of here at three p.m. And we will be done at three. So thank you very much and we'll see you upstairs. Okay. Okay. Okay. Okay. Okay. Okay.