Authentication

“… the Constitutions of Clarendon were duly set down in a chirograph on January 29, the text written out three times on the same parchment and then torn so as to validate all three copies when joined together.” – Sharon Kay Penman, Time and Chance 210 (2002) (describing an accord between King Henry II of England and Archbishop of Canterbury Thomas Becket, 1164).

The problem of determining the authenticity of legal documents is not a new one – it is in fact a very ancient one. Medieval lawyers and kings prevented forgeries of important agreements as described above: by writing the same text on a piece of parchment and cutting it jaggedly, so the two parts fit back together like puzzle pieces, verifying that neither has been substituted for the real one. An example of this technique is on the PCL’s first floor, near the stairwell.

English charter showing jagged edge

Note the jagged top edge, with writing

If you look carefully, you can see that there is a word – probably chirograph – written across the jagged edge. Obviously this method wasn’t foolproof: It would still be possible to create a controversy by neatly altering one of the texts. (I had a music teacher who taught me to scrape text off a printed page and buff the remaining surface; it’s also possible with parchment. Scraping is actually part of the process to prepare parchment for use.)

For much of the last century, this was less of an issue. Most legal documents we relied on were obtained through trusted sources – from a reputable publisher, from the court, or directly from the government – and alterations would have been obvious. In many cases, there were so many copies (of a court’s opinion, for instance) that altering one copy would be easily discovered. (This is one of the operating principles behind some online preservation efforts – Lots of Copies Keeps Stuff Safe.) But in an age where many researchers rely on online access, and hacking of institutional systems is not infrequent, there need to be additional safeguards in place.

Conceptually, authentication comes down to two questions:

1. Did you get the document from a source you trust, and
2. can you verify that it hasn’t changed since they gave it to you?

Acquiring a document from a trusted source is still important. One way of doing that is to go to reputable information sources, including commercial sources (like publishers), country or state governments, or non-governmental organization. When these sources are hacked, it makes news. Recently, the federal government has implemented technological systems that address the second question. The new online system to access federal documents, FDsys, incorporates an authentication process. While the details of the technology are – frankly – beyond my comprehension, authenticated documents display an eagle symbol and a notice that the document is certified by the Superintendent of Documents.

Authentication seal & certification for H.R. 36, 112th Cong. (1st Sess. 2011).

Authentication seal, certified by the Superintendent of Documents

While the federal government has taken the lead, efforts in states vary widely. Surveys of the states in 2007 and 2009 revealed that while some states are relying on online versions of their basic legal documents, almost none are authenticating those documents via any technological means. They are relying on the protections of state websites and .PDF formats, neither of which are impregnable to the dedicated hacker.

As students and practitioners of legal research and writing, you should know that the most recent citation guidelines refer to “Authenticated documents” as one type of online source that is permissible to cite (Rule 18.2.1(b)). Presumably the federal government’s initiative will spread to the various states, and perhaps by the 20th edition of The Bluebook (or maybe the 21st edition), authenticated online documents will be the norm!

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