Criminal Law Library Blog

BY:Claire M Germain, Edward Cornell Law Librarian and Professor of Law Cornell University and Director, Dual Degree Programs, Paris & Berlin

Claire Germain is interested in all aspects of legal information, from rare books to digital libraries, and often writes on these topics, most recently "Digitizing the World's Laws: Authentication and Preservation." the topic of this posting. For several years she has been actively advocating for effective measures to bring about authentication and improved preservation of digital law locally, nationally, internationally, and globally.

In the United States we especially appreciate her efforts as AALL President in 2006 when she commissioned an AALL Fifty State Survey, which revealed that a significant number of the state online legal resources were deemed official, but none were authenticated by standard methods. As I write this in 2010, work continues on efforts to adopt the findings and recommendations of this Survey in all fifty states. With her paper "Digitizing the World's Laws: Authentication and Preservation", Claire Germain continues her tradition of advocacy from a global perspective.

David Badertscher

Rather than provide a lengthly discussion we have chosen to highlight the paper by presenting the following excerpts.and let you the reader click on the above link and enjoy reading the entire paper.
_________________________

Abstract:
Many countries now provide online access to statutes, codes, regulations, court decisions, and
international agreements. Digital law issues that have emerged include authentication of official
legal information and preservation for long term access, particularly for born digital legal
information which has no paper equivalent. This article is part of a chapter forthcoming in
“International Legal Information Management Handbook” (Ashgate 2010).
_________________________

Official and Authentic Digital Legal Sources
The terms “official” and “authentic” are sometimes used interchangeably but mean
different things. An online official legal resource is one that possesses the same status as
a print official legal resource. In the United States, for instance, the definition of an
official version of court opinions, statutes, session laws, or regulatory materials is one
“that has been governmentally mandated or approved by statute or rule. It might be
produced by the government, but does not have to be.” (American Association of Law
Libraries 2007) This definition is firmly rooted in the print world. Courts and public
officials turn to official legal resources for authoritative and reliable statements of the
law and require citation to such sources in the documents that come before them. By
itself, an online official legal resource offers no such automatic assurance.

Authenticity refers to the quality and credibility of the document. It means that the
text is provided by competent authority and that it has not undergone any alteration in
the chain of custody.2 An online authentic legal resource is one for which a government
entity has verified the content by to be complete and unaltered from the version approved
or published by the content originator. Typically an authentic text will bear a certificate
or mark certifying that the text is authenticated. The standard methods of authentication
include encryption, especially digital signatures and public key infrastructure (PKI), or
similar technologies.3 Authentication of digital law varies by country; some provide
authentication through a digital signature or PKI infrastructure, others through secure
servers and certificates (Hietanen 2007).
_________________________

Authenticity matters because in an environment where online sources are replacing
official print versions of legal information, citizens need to be able to trust digital
versions of the law, in the same way that they have trusted print. Because the digital
medium is vulnerable to errors in management and control, corruption, and tampering, it
is of utmost importance to make digital legal information not only official but authentic.
What is at stake is the transmission of official documents, "the word of the law," to
future generations (Germain 1999).
_________________________

Conclusion
As legal information systems mature worldwide, authenticity is seen as an essential
issue by some who want to guarantee the integrity of official information. There is a
great role for librarians as the research experts in providing access to legal information
and as custodians of information for the long term, in any format, print or digital. The
successful advocacy efforts of the American Association of Law Libraries in the USA
show that librarians can influence information policy decisions for the benefit of all
citizens. There is a great interest in bringing this advocacy to the international level to
develop international standards, possibly within the International Federation of Library
Associations, a major stakeholder for information policy.

In his August 31, 2010 New York Law Journal article, Court Rule Altered to Buttress E-Discovery; I-Filing Advances, Joel Stashenko discusses the amended Uniform Rules of Trial Courts of the State of New York as an effort to insure that lawyers keep "up to speed" regarding their clients' records at the early stages of discovery. The amended rules were published August 18 and went into effect immediately, having been approved beforehand by Chief Judge Jonathan Lippman and the presiding justices of the four appellate division departments.

Much of this activity has been influenced by a New York court system report, Electronic Discovery in the State of New York, published in February 2010. The key recommendations of that Report includes: establishing an e-discovery work group; improving the preliminary conference; more e-discovery programs in Education and Training; more court attorney referees serving as e-discovery specialists, establishing an institutional presence at the Sedona Conference; and working harder to improve the quality of E-Discovery practice.

On the second front mentioned in Mr. Stashenko's article, electronic filing of litigant papers is said to be proceeding in New York at a deliberative pace. While more than10,000 lawyers registered for New York's electronic filing system in 2009, compared to only 300 in 2002, there is , as Chief Administrative Judge Ann Pfau has observed, "there is a long way to go: before e-filing and E-Discovery are required in all New York Courts. After 11 years of experimentation with electronic filing, New York has accorded permanent status to the effort and is now beginning to institute mandatory e-filing in limited areas.

David Badertscher

Introduction

In an August 6, 2010 posting on the AALL Washington Blawg, “As Talks Break Down, What is Next for Neutrality”, Emily Feldman discussed the implication of talks on network neutrality between the Federal Communications Commission (FCC) and stakeholders of network neutrality falling apart, or at least being sidetracked, as part of the fallout from the private proposal presented by Google and Verizon regarding the management and possibly financing of internet traffic. As Ms. Feldman correctly noted, network neutrality is a priority for the American Association of Law Libraries (AALL) because law librarians “are providers, creators and users of digital information, and it is up to law libraries to ensure that everyone has equal access to the information they need”.Although librarians are special stakeholders in issues relating to the nature and the existence of network neutrality due to the nature of their mission, everyone in our society should have special concerns about the outcome of these discussions and debates because of the increasing perception of web based information as increasing in value as a service, and even perhaps as a commodity (or something like a commodity).

The above considerations have inspired me to create a new posting to update information previously posted on this blog about network neutrality and also to incorporate new discussion about what network neutrality is, providing some added information to help bring the recent FCC, Google, Verizon interactions into perspective, and conclude by providing some information regarding positions taken on network neutrality by two organizations with which I am most familiar, the American Association of Law Libraries and the Internet Society.

What is Network Neutrality?

Network neutrality (also net neutrality, internet neutrality) is essentially a principle or concept which holds that companies providing Internet services should treat all sources of data equally and that there should be no restrictions by Internet service providers and governments on content, sites, platforms, on the kinds of equipment attached, and also no restrictions on the modes of communication allowed. See also New York Times: Times Topics discussion on Network Neutrality updated to August 12, 2010.

Google Verizon and the FCC

Critics of network neutrality have argued that some kinds of data discrimination on the Internet for some purposes, such as to guarantee quality of service, are actually highly desirable. Such divisions of opinion have resulted in large internet companies talking about creating a two-tiered Internet with a “fast lane and a slow lane”. An alternative approach has recently been presented in a joint proposal by Google and Verizon. In their proposal, Google and Verizon advocate enforcing network neutrality principles on wired communications but not on the wireless Internet. The Google/Verizon proposal also includes something they refer to as “additional differentiated online sources”.What this means appears to be an open question as noted in the following e-mail received from the New York Chapter of the Internet Society:

The break up of the FCC’s ‘secret talks’ and the publishing of
the Google/Verizon joint legislative proposal has certainly stirred up a
net neutrality hornets nest. Just what ‘differentiated services’ do they
have in mind? Is wireless really out the window?

The New York Chapter of the Internet Society have prepared a discussion regarding the Google/Verizon involment including a chronology with links to related documents.at "Google/Verizon Statement on Open Internet Net Neutraltiy" on their website. I was prepared to do some reasonably extensive research on this topic myself but thanks to the people at ISOC-NY it was unnecessary for me to do so

Positions Taken on Network Neutrality by the American Association of Law Libraries (AALL) and the Internet Society (ISOC).

American Association of Law Libraries (AALL):

The American Association of Law Libraries is a member of the Save the Internet Coalition and the Open Internet Coalition, both of which bring together individuals, non-profit organizations, businesses and bloggers who strongly support network neutrality . AALL also maintains a Net Neutrality Issue Brief which is currently updated to June 2010.

Internet Society (ISOC)

While the Internet Society does appear to have an Official Statement (included among the Google/Verizon documents mentioned earlier) which addresses the Google/Verizon Proposal I have been unable to determine if they have a document approved by their Board of Directors which constitues an official position of ISOC regarding network neutrality. That does not mean however that ISOC has not taken positions on this subject.. As an example see the ISOC paper "Open Inter-networking" (February 21, 2010) which includes a useful discussion of open network considerations including network neutrality which it considers to be" a broad and ill-defined term that encompasses a range of policy objectives including free expression, user choice, and discrimination as well as business issues including network traffic management, pricing and overall business models." This paper also asserts that "[T]he Internet Society believes that the proper focus in this discussion [open inter-networking] is on the desired outcome: continued open inter-networking. Current debate centres on whether or how IP packets can be treated impartially"

Update as of August 26, 2010.

Since the above information was posted two additional documents useful to this discussion have come to our attention:

Access to Broadband Networks: The Net Neutrality Debate
Report No. R40616
Subjects: Telecommunications
CRS Reports, 111th Congress (8/11/2010; Posted: 8/26/2010)
SEE SUMMARY

Campbell, Robert. "Lawmakers Argue Against Adoption of Verizon-Google Net Neutrality Plan," Originally posted on Paul Weiss Rifkind Wharton & LLP website. August 20, 2010. Also on Lexology.com.(viewed August 26, 2010.

In an August 20, 2010 paper posted on Lexology, " Lawmakers Argue Against Adoption of Verizon-Google Net Neutrality Plan," Patrick Campbell of Paul Weiss Rifking Wharton & Garrison in New York reports that four Democratic members of the House Energy and Commerce Committee have written to FCC Chairman Julius Genachowski voiceing their concerns with the net neutrality policy framework proposed by Verizon Communications and Google, Inc. Mr. Campbell writes: "The lawmakers claim that the agreement 'reinforces the need for resolution of the current open proceedings at the Commission to ensure the maintenance of an open Internet.' In the week since its introduction, the regulatory roadmap offered by Google and Verizon has added considerable ammunition to the debate over net neutrality that continues to intensify in the wake of the D.C. Circuit Court’s decision in the Comcast- BitTorrent case. Specifically, the companies’ plan would prohibit wireline broadband operators from selectively blocking web transmissions while exempting wireless mobile broadband providers from net neutrality regulation..."

Today we received a link to a slide presentation by Glenn Patton, Director of Wordcat Quality Management at OCLC on July 11 at the American Association of Law Libraries (AALL) Annual Meeting in Denver, Colorado. We are sharing this information with you because these slides convey an important message regarding the urgency of establishing acceptable standards and developing techniques based on those standards for ensuring continued and improved access to structured data stored in various formats on web.2.0 and future versions as they evolve. .Topics covered include updates regarding the Connexion client, some discussion of the Virtual Internation Authority File (VIAF), and the ISO 27729 ISO Standard, International Standard Name Identifier (ISNI).

On Wednesday August 4, 2020 Chief U.S. District Judge Vaughn Walker in San Francisco struck down California's ban on same sex marriage in a 136 page opinioon, ruling that voter approved Proposition 8 violates the constitutional right of equal protection. Proposition 8 defines marriage as a union between a man and a woman.

This high profile case, Kristin Perry et. al. v. Arnold Schwarzenegger Case3:09-cv-02292-VRW, is being watched closely by both supporters and opponents of same sex marriage, as many believe it will make its way to the U.S. Supreme Court where it could result in a landmark decision.

Below are links to a discussion of this decision in the August 15 New York Times and to the decision as decided on Wednesday.

Article by James Wilson and Mary McKay in August 15 New York Times.

Kristin Perry et. al. v. Arnold Schwarzenegger Case3:09-cv-02292-VRW

According to the New York Times, the articles published on July 25 are based on thousands of United States military incident and intelligence reports — records of engagements, mishaps, intelligence on enemy activity and other events from the war in Afghanistan — that were made public on Sunday on the Internet by WikiLeaks, an organization devoted to exposing secrets of all kinds. These reports are used by desk officers in the Pentagon and troops in the field when they make operational plans and prepare briefings on the situation in the war zone. Most of the reports are routine, even mundane, but many add insights, texture and context to a war that has been waged for nearly nine years.

The New York Times article, Piecing Together the Reports, and Deciding What to Publish, explains the process of deliberation through which the New York Times decided to publish, and sometimes not to publish, material from some 92,000 individual reports made available by WikiLeaks to the Times, The Guardian newspaper in London, and the German magazine Der Spiegel.

Like others who have expressed their condolances, I felt both saddness and a sense of loss upon hearing that Gloria Dinerman, a prominent Information Sepecialist and business person, had passed away in New Providence, NJ on Sunday July 17, 2010. As mentioned in the obituary below, Gloria will be remembered by all of us for her "....unique style, sharp wit, and cultural savvy". I also remember her as a person of humanity and caring who was always ready to lend assistance when needed.

David Badertscher

Below is an obituary from the Home News Tribune July 21, 2010. followed by links to two articles by Gloria.:

OBITUARY:

GLORIA COHAN DINERMAN
AGE: 82 COLONIA
Gloria Cohan Dinerman passed away in New Providence , NJ on Sunday July 17, 2010, after a long battle with pulmonary hypertension. Gloria was born in Brooklyn , NY and raised in Mt. Vernon , NY by her beloved mother Betty Weinberg Green. Determined and active in sports and the arts, she graduated Davis High School and attended Pembroke at Brown University , majoring in English. She met her husband Max there and they married in 1948. Before the marriage ended they had three sons, Douglas, Peter and Robert. Gloria pursued several careers while raising three small children by herself including administrative work at First National Bank, managing an urban renewal project, managing stock broker training for LF Rothschild's, and providing financial advice to municipalities for the State of NJ . She was a resident of Colonia , NJ until a few months ago. She always valued books and libraries. As a young mother Gloria became active in the Woodbridge library system. She earned a Masters in Library Science and started her own library services company, The Library Co-op, which she owned until 2008. She became active in several library related organizations including the Special Library Association from which she received a special Lifetime Achievement Award in 2009. Gloria got the most out of life and used her abundant energy for playing tennis, traveling and supporting those things she loved; her family and friends, children, dogs, the Yankees, and the NY Giants. Family and friends will remember her unique style, sharp wit, and cultural savvy.
She is predeceased by her eldest son, Douglas, and is survived by her son, Robert, daughter-in-law Linda and their three children Kathryn, Gregory, and David of New Providence, NJ; her son Peter, daughter-in-law, Mary and their son Bryan of Lafayette, CA.

Gloria, always a forward-thinking woman, donated her body to the Robert Wood Johnson Medical School . Donations in her name may be sent on-line or by mail to St. Jude Children's Research Hospital 501 St. Jude Place Memphis, TN 38105. There will be a celebration of her life on Saturday July 24th 11:00am at The New Providence Presbyterian Church 1307 Springfield Avenue, New Providence, NJ 07974 (908) 665-0050. Reception to follow.

Published in Home News Tribune on July 21, 2010

TWO ARTICLES BY GLORIA:

Dinerman, Gloria. "If you Don't Know, Ask:The Art and Craft of Survey Development and Analysis", in Information Outlook, Volume 6. No. 7. July 2002.

Dinerman, Gloria. "Managing an Information Business", in Encyclopedia of Library and Information Science LIb-Pub, 2d Edition, Miriam A. Drake, ed., CRC Press, 2003,

More than a dozen Washington Post journalists spent two years developing Top Secret America, a multimedia presentation put together by compiling hundreds of thousands of public records of government organizations and private sector companies. From these records, the Washington Post identified a web of these organizations, both government and private, that are engaged in top secret work for the government. According to Dana Priest and Matthew M. Arkin, two Washington Post reporters who have written about the Project, these findings amount to "...a Top Secret America hidden from public view and lacking in thorough oversight."

Here are some additional links for those interested in the Washington Post Project:

Introductory Video: http://projects.washingtonpost.com/top-secret-america/

Articles by Dana Priest and William Arkn discussing the Top Secret America Project: http://projects.washingtonpost.com/top-secret-america/articles/

While the Washington Post was involved in the above project, Andrew M Borene was editing a book The U.S. Intelligence Community Law Sourcebook: A Compendium of National Security Related Laws and Policy Documents, recently published by the American Bar Association. I have not yet read this book but according to material provided by the ABA, "the Washington Post's new multimedia project on national intelligence shows just how intricate the web of agencies and laws in the United States can be, and The U.S Intelligence Community Law Sourcebook can be a great reference for making sense of it."

This book is described as a "complete guide to U.S intelligence community source material, including relevant federal statutes, intelligence authorization acts, executive orders, attorney general and the director of national intelligence guidelines, and proposed significant legislation in the U.S. intelligence community".

From information available, it certainly appears that the combination of the materials available from the Washington Post Top Secret America Project and the Compendium volume published by the ABA together comprise together provide a much needed, even essential, resource for those exploring issues related to "Top Secret America".

David Badertscher

Many thanks to Jonathan Stock, recently retired as Supervising Law Librarian at the Connecticut Judicial Branch Law Library at Stamford, for writing this fine, thought provoking article. It has been published in the July 2010 issue of AALL Spectrum and we have linked to the Spectrum article with Jonathan's permission.

Jonathan's article is truly an allegory which can be considered from many perspectives, not the least of which are Jonathan's impressions of recent efforts to help save many of the court law libraries in Connecticut from possible oblivion.

Before linking to the actual article, I would like to share a bit of our e-mail exchange after his article first appeared in AALL Spectrum

DAVID BADERTSCHER: Thank you for sending the article. I had not yet seen it in final form. Like much great fiction, your article is not really fiction in the most fundamental sense. This is fine allegorical writing. Keep this up and we will all be calling you the John Bunyon of the library world!

FROM JONATHAN'S RESPONSE: ... It did end up being a bit like John Bunyan, with modern updates and annotations from Kurt Vonnegut and Joe Heller. T.S. Eliot luanches, but Yeats gets a walk-on too. So does Neville Chamberlain: a people far away of whom we know nothing. It all started one weary night a few months ago as the stupidity of it all soaked in. The first thing that came to mind was from Catch-22. It was the place where the bad guys (maybe Captain Black) consign Yossarian to a shrink. They may put him up on pentathol before starting their question. The first one is:
"Where were you born, Yossarian?'
"In a State of Innocence."

Now, please go to Chambers of the Sea: Who Needs Law Libraries? It's All Free on the IInternet and enjoy Jonathan Stock's article for yourselves.

David Badertscher

Manhattan District Attorney Cyrus R. Vance, Jr., has announced the District Attorney's Office's (DANY) new policy on the prosecution of businesses and organizations. Below are links to the DANY Press Release announcing the new policy and the May 27, 2010 DANY memorandum which contains the actual policy

http://www.manhattanda.org/whatsnew/press/2010-06-01d.shtml Press Release June 1, 2010

http://www.manhattanda.org/whatsnew/press/ProsecutionofOrganizations.pdf Memorandum "Considerations in Charging Organizations" May 27, 2010

Apparently prosecutors in Queens County New York think so. This month Queens prosecutors have charged two women with stealing more than $30,000 from three elderly men they had befriended separately. The women were charged with grand larceny as a hate crime.

This strategy of treating some hate crimes as larcenous behavior is considered a novel approach. Indeed Kathleen Hogan, president of the New York State District Attorneys Association and Scott Burns, executive director of the National District Attorneys' Association have both said they had not heard of another jurisdiction using this Queens County approach to hate crimes.

According to a New York Times article by Anne Barnard, A Novel Twist for Prosecution of Hate Crimes, "the legal thinking behind the novel method is that New York's hate crime statute does not require prosecutors to prove defendants 'hate' the group the victim belongs to, that they commit the crime because of some belief, correct or not, they hold about the group."

This is different than the standard public perception of hate crimes as resulting an animus against or "hate" of a particular ethnicity, as described in "Hate Crimes and Revealing Motivation Through Racial Slurs" as posted in the September 2009 The Jury Expert: The Art As Science of Litigation Advocacy, September 2009, "hate" of a particular sexual orientation, or similar strong, negative feelings toward a particular individual or group.

On October 1, 2009 I posted an appalant brief for U.S.A v. Justin K. Dorvee on this blog. The Brief was prepared by Paul F. Angioletti, attorney for the defendant-appellant.

Mr. Angioletti has now informed me that the Court of Appeals Second Circuit issued an opinion on the Dorvee appeal on May 11, 2010. In this posting we are including a paragraph from the Second Circuit decision which summarizes the conclusion that the sentence imposed on Dorvee by the District Court was "substantively unreasonable", therefore vacating the judgment and remanding the case to the District Court for resentencing.;

EXCERPT FROM OPINION:

Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation
of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the
Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing.