40293888

Legal Admissibility of Electronic Records as Evidence and Implications for Records
Management
Author(s): Sara J. Piasecki
Source: The American Archivist, Vol. 58, No. 1 (Winter, 1995), pp. 54-64
Published by: Society of American Archivists
Stable URL: http://www.jstor.org/stable/40293888
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54 American Archivist / Vol. 58 / Winter 1995
Perspective
Legal Admissibility of Electronic

Records as Evidence and
Implications for Records
Management
SARA J. PIASECKI
Abstract: As civilization develops, both socially and technologically, the laws that govern
human action must change accordingly. This paper examines the current legal debate over
the nature of electronic records and their legal admissibility as evidence in light of past
debates on the admissibility of microfilm, photocopies, and written documents themselves
The author sees contemporary judicial thinking as following the historical trend of relyin
on personal testimony and "dependable systems" to ensure documentary veracity an
validity. The conclusion stresses the impact of the legal status of electronic records on
records management programs and the need for records managers to be aware of th
foundations of current legal thought.
About the author: Sara J. Piasecki received her B.A. in medieval studies from Reed College i
1992. She is a 1994 graduate of the College of Library and Information Services at the University
of Maryland at College Park. This paper was originally written in spring 1994 for Dr. Frank Burke '
course on archives, libraries, and the law.
Legal Admissibility of Electronic Records 55
Throughout history, societies have tion - or, at least, that you can make them
created rites and procedures through more accountable."1
which individuals could achieve social Certain legal theories and practices,
and legal validation for their actions. In
however, remain rooted in a culture, or sys-
the Middle Ages, social acceptance tem, and of reliance on oral testimony. The rule
individual honor were defined and articu- of hearsay is one such orally based prac-
lated in courts of law through the oral tes- tice, defined as "written or oral statements
timony of witnesses, who were called to or assertions by way of non-verbal conduct
verify the social standing and moral char- made by persons not testifying [which] are
acter of an individual. Conversely, legal inadmissible if tendered as proof of their
acceptance of an individual's actions was truth or implicit assertions."2 The rule is
predicated on his or her place in the fabric based on conceptions of the validity and
of society as shown in this oral testimony, veracity of direct oral testimony and a dis-
and not necessarily on determinations of trust of information delivered second-hand,
the legality or illegality, or commission or including, theoretically, all written docu-
noncommission, of a deed. The strongest ments. Historically, the hearsay rule has
legal evidence was oral testimony by hon- hindered efforts to introduce more kinds of
orable citizens, and accountability was so- records into evidence, and its foundation in
cially constructed and communally theories of oral testimony has hampered
enforced. the legal recognition and accommodation
Over the course of centuries, written of technological advances in systems and
documents have slowly been introduced as methods of documentation. The accumu-
a secondary form of evidence. These texts, lation of a body of case law has been re-
too, testified by personal statement: elabo- quired at each step to ensure legal accep-
rate seals and signatures accommodated the tance of new technologies into evidence
oral tradition's emphasis on the identity and to solidify the legal foundations of ad-
and status of the witness, rather than on the missibility against objections based on
content of the evidence itself. Formal as- technicality and conflicting judicial deci-
pects of the text - such as layout, design, sions.
and script, as well as written formulae - This legal system, which has taken years
supplemented seals and signatures in iden-to accept paper records as primary evi-
tifying the authority behind the document. dence, has done so on the basis of strict
This authority, established internally, al- guidelines that promote a continued reli-
lowed the document to provide evidence of ance on personal accountability. Thus the
an external event. specter of electronic records - records and
Modern society has tended to move documents created, manipulated, and/or
away from oral testimony, or at least to maintained on digital technologies, such as
have placed a far greater faith in, and em- the personal computer - has quickly cast its
phasis on, written records. While wit- shadow on judicial thinking about the na-
nesses may and often do perjure ture of records and their admissibility as
themselves on the stand, judicial thinking evidence. Insecurity and ambivalence
on written records is that they provide
documented facts, and the mechanisms for
enforcing accountability have become rec- Michael K. Buckland, "Records Management in
ord-based. Michael Buckland has ob- Its Intellectual Context: Experience at Berkeley," Re-
cords Management Quarterly 16 (October 1982): 26.
served that "[modern] society seems to
zMark Hopkins, Records and Records Keepers Ju-
have decided that you can make people
dicially Considered: Credibility or Convenience?"
honest by requiring enough documenta-
Archivaria 18 (Summer 1984): 155. Emphasis added.
56 American Archivist / Winter 1995
about the reliability of electronic recor

and their inherent truth has caused an
easiness about their value as evidence.
When first introduced into judicial pr
ceedings, written documents gave amp
testimony to their own authority -
means of seals and the like - as well as tes
timony concerning the case at hand. In
contrast, the apparent lack of internal
idation of electronic records renders th
testimony about external events all the
more suspect. Hugh Taylor sees the prolif
eration of electronic records and commu-
nication as the advent of a "post-literat
era, in which high-speed linkages will fos
ter modes of communication analogous
those of oral cultures.3 If his predicti
proves correct, electronic records may sh
the few remaining structural and form
properties they share with paper docu-
ments, further confounding current le
rules of evidence, which recognize the for
mal and systematic properties of record
and record systems more than the conten
of the documents themselves. initions. J. Timothy Sprehe has reflected
During the early development and that most current laws concerning docu-
growth of electronic technologies in rec- mentation "apparently entailed an unques-
ordkeeping systems, many predicted that tioning assumption that the records me-
electronic records would replace paper and dium would remain constant, that records
result in the "paperless office," but this would always be maintained on paper."6
has not yet come to pass. In fact, the vol- When this assumption is obviated, the law
ume of paper records seems to be growing, may become untenable; some observers
and estimates show that 95 percent of busi- have even expressed concern that the U.S.
ness records are currently produced and Constitution may be, in part, so flawed in
kept on paper. A projection for 1999 sees its basis and may require amendment to ac-
the volume of paper records falling only commodate electronic technologies.7
slightly, to 92 percent of total records, The issue of the legal acceptance of elec-
whereas electronic records are expected to tronic records, and the theoretical and prac-
climb only slowly, to 5 percent of total
records.4 Will this be a steady trend, indi-
5Taylor, '"My Very Act and Deed'," 466.
6J. Timothy Sprehe, "The Significance of 'Admis-
sibility of Electronically Filed Federal Records as Ev-
3Hugh Taylor, "'My Very Act and Deed': Some idence,'" Government Information Quarterly 9 (April
Reflections on the Role of Textual Records in the 1992): 153.
Conduct of Affairs," American Archivist 51 (Fall7 James Daly, "Constitutional Scholar Calls for
1988): 457. High-Tech Amendment," Computerworld, 1 April
4Whit Minkler, presentation on micrographics 1991, 99; Robert Ritter, "E-mail Laws Changing: Ju-
given at the University of Maryland, College Park, 26 dicial and Legislative Notice of the New Ways We
April 1994. Communicate," Quill 81 (October 1993), 24.
in the conductis
tical bases on which that acceptance of to
business, photocopies
be granted, is important notwere regarded
only only as copies of original
to those
records,
who must create and interpret theor law
secondary
butevidence, whereas
original
also to those who must obey therecords
lawand carbon copies alone
and
seek justice in its confines. were
Into accorded
this status
latteras primary evidence.9
A 1938 U.S. federal
category fall records managers, whocourtaredecision found
that "recordak" microfilm
keenly aware of the legal requirements and photographic
obligations of their records copies of documents
programs andkept as "regular rec-
of the need to establish the ords" were admissible
legality and ad- under the Federal
missibility into evidence of Business Records Act (28 USC Sec 1732-
the documents
in their care. The outcome 33),
of even thoughde-
judicial not specifically provided
cisions and legal wranglings for by that
over act. ad-
the However, the Illinois Su-
preme Court
missibility of electronic records willruling
have in 1942 on the use of
a considerable impact on records manage-
the same technology refused to accord pho-
ment programs in public andtocopies a legal or-
private status for admissibility
ganizations. It will do so identical
whether to thatelec-
of carbon copies. Conflict-
ing percentage
tronic records remain a small judicial precedents ofwere finally settled
all records kept or grow toinreplace
1949 with paper
the passage of the Uniform
records for the majority ofPhotographic Copies of Business and Pub-
organizations'
lic Records
transactions. An understanding of the as Evidence
his- Act, or UPA (9a
Uniform Laws
tory and present state of judicial Anno. 580), as an amend-
decisions
informing ongoing debatesment may to the Federalre-
help Business Records Act.
cords managers follow currentThe act legal
stated that
rea-if an organization
soning. That understanding may also make
it easier to anticipate directions inregular
in the which course of business or
records management programs activity
may has keptto
need or recorded any
develop to meet changing requirements
memorandum, writing,for entry, print,
the handling of electronic records.
representation or combination thereof,
of any act, transaction, occurrence or
A History of New Technologies:
event, andYears
in the regular course of
of Change and Resistance business has caused any or all of the
same
Taylor has observed that as to be tech-
new recorded, copied, or re-
produced by
nologies are introduced into society, anythe
photographic, pho-
tostatic, microfilm,
"new medium is deeply distrusted until it micro-card, min-
iature photographic, or other process
becomes established and takes on a life of
its own."8 The legal questions being raised which accurately reproduces or
forms a durable medium for so re-
about the legal admissibility of electronic
records recall previous debates over the in- producing the original, the original
troduction of two other technologies: pho- may be destroyed in the regular
course of business unless held in a
tocopies and microfilm. Both of these
technologies were distrusted as evidence custodial or fiduciary capacity or un-
until the law was able to establish bases for less its preservation is required by
authenticating them as true reproductions
of paper originals.
9The following discussion is based on the treatment
During the early usage of photocopiers
of photocopies in Charles C. Scott, Photographic Ev-
idence: Preparation and Presentation, 2nd. ed., vol.
3 (St. Paul, Minn.: West Publishing Company, 1969),
8Taylor, "'My Very Act and Deed'," 457-459. especially sections 1381-92.
1949 UP A
law. Such reproduction, provided satis-
when for the admissibility
of is
factorily identified, microforms as originals, given the same
as admissible
necessary conditions
in evidence as the original itself. of production in the
regular course of business by a process that
"accurately
The key phrase of the act is reproduces"
"in the the original
reg- doc-
ument. For
ular course of business." By 1971,ahowever,
photocopyno judicial de-
not made in the regularcision had been handed
course of down concerning
business
to be admitted, proof themust
retention of
be originals
given from that
which mi-
crofilm copies
(1) the original document wouldhad been made inbeen
have the reg-
ular coursedocument
admissible; (2) the original of business or theis
legal status
not
of copies
producible; and (3) the made from computer-output
photocopy is a re- mi-
crofilm (COM).11
liable copy of the wording of theThe question of the le-
original.
gality of COM copies
Admission of such irregular has been further
photocopies
complicated to
was therefore more difficult by the fact that the original
obtain.
document is computer-generated,
Although proof of admissibility of irreg- introduc-
ing concerns
ular photocopies clearly reliedabout on
the reliability
the tes- of records
created
timony of witnesses as toand manipulated
the contentselectronically.
and Ar-
whereabouts of theticulating
original a deep-seated fear about com-
document,
puter-generated
proof of an established system documents,
of photo-one report on
the admissibility
copying records in the regular of microfilm
course assertedof
that
business also requiredpaper documents themselves
personal testimony.are coming
The records manager,under
or suspicion:
another employee
in charge of the program or activity, would
need to testify as to the procedures
It is generally and
assumed that paper
offers
methods of the system. security
It has becauseasserted
been a signature
that the provisions for can be proved, handwriting
admissibility of anddoc-
pa-
uments created in the regular
per dating course
analysis can be done andof
business have allowed the courts to "move typewriters identified. But now word
from a reliance on people to a reliance on processing machines can alter the
paper in proving business facts," but only text on reproductions of originals.
because the "documents are made under One no longer has to recruit a typist
standardized conditions usually verified by to create a forgery; one simply has to
independent sources."10 Personal account- be able to instruct the word process-
ability remains, however, whether legally ing machine to change the text as de-
or administratively, with the program man- sired. The machine will then print
ager, who has control over all the proce- out the required changes, producing
dures and methods by which copies of a record identical in every detail to
documents are made and can verify them. the original except that the desired
The situation is substantially the same information has been changed.12
for microfilm copies of documents. The
Microfilm and photocopies have been
assimilated into the laws of evidence based
10"Microfilm as Documentary Evidence," Consen-

sus 6 (4), reprinted in Legal Aspects of Micrograph-
ics, Special Interest Package no. 7, (Silver Spring, 11 Admissibility in Evidence of Microfilm Records,
Md.: National Micrographics Association, 1982), 7- prepared by Nixon, Hargrave, Devans, and Doyle for
76. NMA changed its name to Association for Infor- Eastman Kodak Co. (Rochester, N.Y.: Eastman Ko-
mation and Image Management (AIIM); 1 100 Wayne dak Co., 1971), 7, 13.
Avenue, Suite 1100, Silver Spring, Md. 20910. 12"Microfilm as Documentary," 7-76.
on their ability to reproduce been proposed.

accurately As with a photocopies and
paper original. Standards for microfilm, legal practice and judicial de-
the methods
and processes by which they cisionreproduce
have begun to the set precedents in the
original can be establishedabsence of specific legislation. Lawyers
and effectively
evaluated. Equally important, and judges
both have agreed in practice to in-
photo-
copies and microfilm, although clude electronic
products records ofin discovery pro-
mechanical technologies, are as
ceedings readable
part of "all records" requests,
without the aid of a machine. The UPA is admitting them as evidence, just as paper
predicated on the concept of the reproduc-memos and letters would be admitted.14 In-
tion of a paper original, by carefully mon- clusion in discovery proceedings confers
itored systems in the regular course ofon electronic records a "quasi-legal status"
business, which can be verified by a pro- as evidence,15 but full legality as records of
gram manager. The reproductions of the organizational functions and activities re-
documents are perceptible as such by the quires the acceptance of electronic records
naked eye - as full-size or reduced images under specific legislation.
of a paper original. How is the law to ac- Such acceptance came informally in
commodate a technology that creates its1990 when the U.S. Justice Department is-
own documents in electronic form; is ablesued a white paper on the rules of evidence
to add, alter, or delete sections of infor- as applied to electronic records.16 This pa-
mation or whole documents; works byper, prepared to provide guidance to fed-
means of processes embedded in program-eral records managers on the legal aspects
ming codes; and produces records that are of creating and maintaining electronic rec-
indecipherable without the aid of the tech-ords, asserts that these records are provided
nology on which they were created? for under the Federal Records Act of 1950
Perhaps the one common denominator(44 USC Ch. 21, 29, 31, 33). The Justice
that will emerge from comparisons of theseDepartment cites the statutory definition of
disparate technologies will be the implicit federal records, which includes "machine-
reliance, articulated in the UPA as the readable materials," as well as the injunc-
"regular course of business," on what one tion to agencies to carry out "economical
report termed "dependable systems . . .and efficient management" of their re-
which can guarantee the accuracy of thecords, which "appears to encourage the
information contained in the documents use of information processing technology
they produce."13 It remains to be seen howsuch as computers and micrographics as re-
the law will handle electronic records. cords management tools." The paper dis-
Early evidence indicates that it is seekingcusses the relationship of electronic records
to the rules of best evidence and hearsay
to stress the similarity of electronic records
to paper and microfilm records and to de-
fine conditions for the establishment of
"dependable systems" of electronic rec- 14Ritter, "E-mail Laws Changing," 25; Junda Woo,
"E-mail Archives Provide Windfall for Lawyers
ordkeeping.
Seeking Evidence," Wall Street Journal, Eastern Ed.,
4 January 1993, B5.
Legal Statements and Judicial 15Timothy J. Sprehe, "The Significance of 'Admis-
Decisions as Precedents sibility of Electronically Filed Federal Records as Ev-
idence, "'Go vernment Information Quarterly 9 (April
1992): 153.
No specific legislation dealing with the
16Systems Policy Staff, U.S. Dept. of Justice, Jus-
admissibility of electronic records has yet
tice Management Division, Washington, D.C., "Ad-
missibility of Electronically Filed Federal Records as
Evidence," Government Information Quarterly 9
13"Microfilm as Documentary," 7-76. (April 1992): 155-67.
(as defined in the Federal the Federal Business Records Act

Business Record
Act and the UP A), rinding was adopted forthat,
the purpose of facil- "the
while
rules of evidence are no different for elec- itating admission of records into ev-
tronically filed records than for paper re- idence where experience has shown
cords," judicial thinking should be them to be trustworthy. It should be
tempered by knowledge of the ease with liberally construed to avoid the dif-
which electronic records can be manipu- ficulties of an archaic practice which
lated and altered. Thus, the paper recom- formerly required every written doc-
mends that records managers take special ument to be authenticated by the per-
care in creating procedures for the control son who prepared it. ... The Act
and maintenance of electronic records pro- should never be interpreted so
grams, since "inadequate documentation strictly as to deprive the courts of the
or inability to explain these controls in lay- realities of business and professional
men's terms can have dire consequences practices.
either in getting such evidence admitted or
in the weight it is accorded in terms of pro- The decision then sets out three require-
bative value." ments for admission of electronic records:
Indeed, because electronic records are (1) illustration of input procedures used;
perceived as being even less reliable than(2) tests for accuracy and reliability; and
photocopies or microfilm, records manag-(3) proof that records were created in the
ers and attorneys must take great care in regular course of business.
laying a proper foundation for their admis- Based on these precedents, the Justice
sion into evidence. The Justice paper citesDepartment report concludes that the cre-
several conflicting opinions that have beenation and maintenance of electronic records
handed down concerning the admissibilityin federal agencies was permissible from a
of electronic records. United States v. legal standpoint, and it identifies the foun-
Scholle (558 F.2d 1109, 8th Cir, 1977)dations on which electronic recordkeeping
stressed the differences between electronic programs can be justified and recognized
and other record media, asserting that in the eyes of the courts. Its recommenda-
"[e]ven where the procedure and motive tions, which were based on an analysis of
for keeping business records provide a judicial precedent, lacks refinement in their
check on their trustworthiness . . . , the specific provisions. This refinement is sup-
complex nature of computer storage calls plied in large part by the performance
for a more comprehensive foundation." guidelines for the legality of electronic rec-
Conversely, the differences between elec- ords as evidence issued by the Association
tronic records and paper records were for Image and Information Management
downplayed in United States v. Vella (673 (AIIM) in 1992 (AIIM TR 31/1). These
F.2d 86, C.A. Tex., 1982), which held that guidelines cover "information preserved
"computer data compilations . . . should by any technique in any medium, now
be treated as any other record of regularly known or later developed, that can be rec-
conducted activity." ognized by ordinary human sensory capa-
Faced with these conflicting precedents, bilities either directly or with the aid of
the Justice paper turns to the decision in technology."17 The AIIM standard, like the
United States v. Russo (480 F.2d 1228, 6th Russo decision, sets out three requirements
Cir, 1973), "which appears to be a leading for the admission of electronic records:
case" on the admissibility of electronic
records. In handing down its decision, the
court held generally that 17Minkler presentation.
1. Written procedures oning the use and

input of electronic
out- mail communi-
put cations because "they believed that unlike
2. Education programs for users of the paper records, computer records did not
systems have to be preserved."20
3. An audit system Concerned citizens acted to hold federal
agencies accountable and to preserve e-
The AIIM guidelines are an industry stan-
mail communications concerning the Iran-
dard for ensuring a "high probability for
Contra scandal by filing a lawsuit against
legal admissibility,"18 but they do not carry
the government on the last day of the Rea-
statutory authority.
gan administration. Armstrong v. Executive
Court cases continue to be decided on
Office of the President (810 F. Supp. 335,
the legality of electronic records as evi-
DDC 1993) was decided on 3 January
dence. Recent debates have focused on
1993 in favor of the plaintiffs, as the court
electronic mail systems and the status of e-
found that the defendants had failed to pre-
mail messages as records. Currently, only serve records under the Federal Records
one piece of legislation relates specifically
Act and had failed to establish procedures
to electronic mail: the Electronic Commu-
for the creation, maintenance, and dispo-
nications Privacy Act of 1986 (Public Law
sition of electronic records.21 The govern-
99-508). As the name indicates, the act
ment appealed, but the appellate court
protects the privacy of e-mail communi-
upheld the decision of the lower court (62
cations by outlawing unauthorized inter-
USLW 2109, 1993 WL 304567), finding
ception and intrusion. Exceptions are made that "all electronic mail records must ini-
for government access to these records,
tially be considered federal records since
which law enforcement agencies can sub-
they were prepared in the conduct of fed-
poena under court order if they can show eral business." The court further found that
reason to believe that the records contain
"since no approved procedures existed to
information relevant to an enquiry. To en-
distinguish which records were not federal
sure that such records will be available if
records, none of the electronic mail records
a law enforcement agency requests them,
could be destroyed under prevailing prac-
the act requires that the system subse- tices."22 The court held that "since there
quently make back-up copies of all re-
are often meaningful differences in content
quested electronic information.19
between paper and electronic versions of
Most e-mail systems now have the ca-
records, the electronic versions must be
pability to create back-up tapes of messa-
managed."23
ges sent and received in the regular course
The appellate court's acknowledgment
of business. Oliver North seemed unaware
of the potential disparity between elec-
of that fact when he used the IBM Profs e-
tronic records and paper records - in that
mail system of the National Security Coun-
electronic records may contain a wealth of
cil (NSC) to communicate with others
involved in the Iran-Contra dealings. A
New York Times article charged the NSC
20Stephen Labaton, "Preserving History, and
and other federal agencies with encourag-
Trivia, in Computer Files," New York Times 8 Jan-
uary 1993, B14.
21"Court Holds E-mail Is Federal Record," News
Media and the Law 17 (Fall 1993): 6.
18Sprehe, "Significance of 'Admissibility of Elec- 22Donald S. Skupsky, "The Law of Electronic
tronically Filed Federal Records as Evidence,'" 154. Mail- The Impact of the White House Case on
19Joanne Goode and Maggie Johnson, "Putting OutYou!" Records Management Quarterly 28 (January
the Flames: The Law and Etiquette of E-mail," On- 1994): 36.
line 15 (November 1991): 63. 23"Court Holds E-mail Is Federal Record," 7.
62 American Archivist / Winter 1 995
information aboutare sender, receiver,

the records managers, who are respon- date
sible for which
actions, and the like, ensuring organizations'
is not compli-alway
ance with
transferable (due to all legal requirements
system design and or us
obligations
choice) to paper copy - foris adequate
the documentation.
first indica
tion that the Reports
courts may such as the Justiceto
begin Department
treat elec
tronic records in white
fundamentally differe
paper and the standards promulgated
by AIIM give records
ways. Previous decisions have managers
oftensome soug
to place electronicguidance
recordsin establishing proper methods
within a pape
based theory of documentation.
and procedures for the creation, mainte-
Many re
ports and articles
nance,continue to counsel
and disposition of electronic re-
agencies to retain
cords. paper copies
Although the Profs of elec
case applies only
tronic records,
without suggesting
to federal records protected under the Fed-the ne
cessity for proper eral Records Act, the
system private sector must
design to
addre
the difficulties involved in
also tread carefully capturing
when disposing of elec- mu
of the pertinent tronic records: no legislation requires pri-
information.24
Scholars vate organizations toas
journalists, and retain copies ofas the
well
Justice Department, e-mailhave
messages infound
the regular course
that of cour
tend to treat electronic records
business, but the
judicial decisions same as
and the
ECPA indicate that businesses
their paper counterparts,25 and should the
es- very
wording of the Russo decision
tablish records - its
retention programs relian
to pro-
on assurances that electronic records have tect themselves in case of litigation.26
been produced in the regular course of One of the primary concerns of emerg-
business - recalls earlier debates on the le- ing electronic records scheduling may be
gality of paper-based documentary media. the identification, by both public and pri-
These attempts to find a common legal vate agencies, of the records that are per-
ground on which to discuss both paper- manently valuable, and the procedures by
based and electronic records seem, indeed,
which such records, slated for retention,
to have embraced the concept of "depend- will be removed from the mass of nonre-
able systems," by seeking to enforce the cord information for preservation. The de-
establishment of documented procedures velopment of systems of "digital signa-
for the creation and maintenance of records tures,"27 and the extension of security
on all media, and thus to have bridged the labeling systems - such as that used by the
gap between the new technologies and the U.S. Department of Defense in classifying
old. electronic information28 - to the private
sector, may enable systems programmers
Impact on Records Management to create better procedures for the comput-
Those in charge of developing and im- erized scheduling of all electronic records
plementing these "dependable systems" as they are created.
"Dependable systems" are deemed de-
24Kenneth Chasse, "The Legal Issues Concerning
the Admissibility in Court of Computer Printouts and
Microfilm," Archivaria 18 (Summer 1984): 166-201, 26Skupsky, "The Law of Electronic Mail," 40.
192, Karen Dawley Paul, Records Management 27John Markoff, "U.S. Electronic Data Move Chal-
Handbook for United States Senators and Their Re- lenged on Privacy Issue," New York Times 29 June
positories (Washington D.C.: United States Bicenten- 1991, 46.
nial Publication no. 2, 1985), 28. 28 J. P. L. Woodward, "Exploiting the Dual Nature
25Ritter, "E-mail Laws Changing," 24; Woo, "E- of Sensitivity Labels," in Proceedings of the 1987
mail archives Provide Windfall for Lawyers SeekingIEEE Symposium on Security and Privacy (Washing-
Evidence;" "Admissibility of Electronically Filed ton, D.C.: Computer Society Press of the IEEE,
Federal Records as Evidence," 156, 160-61, 165. 1987), 23-30.
Chasse and Hopkins

pendable only by proper testimony; they both may be misplac-
are neither self-authenticating
ing the
norresponsibility
self-val- for control over elec
idating. Thus, legal practicetronic records
returns once on the records manager,
sincetestimony
again to a reliance on personal the rise of the microcomputer has led
and personal accountability,tojust
the as
large-scale
it was decentralization of re
when records managers were cordkeeping
requiredfunctions
to to individual crea-
tors
testify as to the methods and of records. by
procedures Their concerns do reflect
however, records
which photocopied or microfilm the prevalence and tenacity of
traditionalor
were created. Unlike photocopying attitudes
mi- toward documentary
validity
crofilming, however, electronic and the are
systems difficulty of rethinking the
often difficult to control or monitor,
paradigm and acceptable evidence in
of legally
order or
protocols are often forgotten to accommodate
circum- electronic records.
This insecurity
vented during input and output. Mark Hop-and tension over the na-
kins shares his concern over the ture and use of electronic records is similar
dependence on the testimony oftorecords
that which has greeted each new tech-
managers in his article, "Records nology
and Re- that has been introduced into legal
proceedings,
cords Keepers Judicially Considered: Cred- from written documents on-
wards. The uniquely unsettling character-
ibility or Convenience?" Citing instances
istics of anonymity given to electronic
of misleading or fraudulent recordkeeping
records,
practices in Canada and the United which lack formal textual aspects
States,
Hopkins asks: "Given business pressures
of signature and seal and, indeed, lack al-
and corporate loyalty, is the most
records
all sense of materiality, make the
fears that
keeper, who is often lacking authority and greet their growing prevalence all
the vehicle
rank, likely to be the trustworthy more difficult to assuage. Judicial prec-
edent has tended to treat electronic records
for entering or adducing evidence?"29
Hopkins's distress over the lacktheof
sameac-as their paper counterparts, ig-
countability for electronic systems noring the complex circumstances under
is echoed
by Kenneth Chasse, who asserts that which electronic records are created and
records
managers must be accorded status maintained.
as expertThe decision of the District of
Columbia
witnesses in judicial proceedings so thatCircuit of the U.S. Court of Ap-
peals inre-
their testimony concerning electronic the Profs case, which recognized
cords systems can remove the need the to
potential
en- disparity between electronic
records
sure the reliability of the electronic records and the paper copies thereof,
themselves.30 Chasse states: "I argue that
pointed the way to a highly contentious le-
for records-keeping systems that aregalto
future.
pro- The court's ruling now forces
duce documents for proof in courtexecutive
proceed- branch agencies to manage their
ings, the law of evidence should beelectronic
changed records in accordance with Fed-
eral Records
to ensure that professional accountability is Act provisions, but private or-
not taken away by computerization."31
ganizations and other government agencies
remain unconstrained by this decision in
the development of records management
29Hopkins, "Records and Records Keepers Judi- programs. Systems do exist which capture
cially Considered," 163. all electronic information - such as e-mail
30Chasse, "The Legal Issues Concerning the Ad-
missibility in Court of Computer Printouts and Mi-
identifiers of time, sender, and the rest -
crofilm," 167. and convert it to decipherable paper copy.
31Ken Chasse, "A Reply to A. F. Sheppard's Com-However, no legislation currently mandates
mentary on the Admissibility in Court of Computer
Printouts," Archivaria 20 (Summer 1985): 160. Em- the use of these systems. Further, if elec-
phasis added. tronic communications systems continue to
dations of
grow in size and complexity, the current lega
multiple
pendable
linkages and capabilities systems." In
for simultaneous
guiding
access and activity may confound legislation, recor
attempts
at two-dimensional, continue
hard-copy to representa-
be involved i
tion. Eventually, theand implementation
divergence between of
electronic
electronic records and paper-based recordkeepin
records
may begin to wear at surethe a "high linking
bridge probability"
the
different media and into may
evidence of crack
electronic records.
the foun-

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Legal Admissibility of Electronic Records as Evidence and Implications for Records

Legal Admissibility of Electronic

about the reliability of electronic recor

10"Microfilm as Documentary Evidence," Consen-

on their ability to reproduce been proposed.

(as defined in the Federal the Federal Business Records Act

1. Written procedures oning the use and

information aboutare sender, receiver,

Chasse and Hopkins

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