A while back I discussed the Brave New World of cites from the internet – how Bill Gates had created a whole new universe of authorities, and our judicial system is not exception to using this tool. One cautionary point in citing from the internet is discussed in an article in Vol. 9 of The Journal of Appellate Practice and Process by Tina Ching called The Next Generation of Legal Citations: A Survey of Internet Citations in the Opinions of the Washington Supreme Court and Washington Appellate Courts, 1999-2005.
As the title of the article indicates, the author examined decisions from the Washington appellate courts from 1999-2005 to see if they included internet citations. There were 132 such cites, in 84 cases. The cites ran the gamut — of government publications (e.g. agency websites), case information (e.g. case exhibits), legislative history (on the state legislture’s website), primary sources (e.g. agency decisions and local codes), non-government publications and material otherwise not classified.
The most interesting part to me was that when she tried to visit the sites, only 36% still pulled up the material. This is the "link rot" phenomenon — aside from the usual questions regarding accuracy in the first place, material on web sites come and go. The article quotes another commentator who states: "Ironically, authors who cite Web sites instead of paper sources probably think they are making their sources more available to readers, rather than less …. however Web citations lack the necessary stability that guarantees access." (p. 398, citing Mary Rumsey, Runaway Train: Problems of Permanence, Accessibility, and Stability in the Use of Web Sources in Law Review Citations, 94 Law Lib. J. 27, 34 (Winter 2002).
In sum, accuracy, authentication and preservation of cited online information are all very thorny issues. The scope of what can be found on the web also raises questions about when courts start making their own factual investigations — aren’t they just supposed to be looking at the appellate record? What constitutes a "fact"? And while this article just identified the decisions with web citations, courts could be roaming the internet without any party knowing — it’s only if the decision does include a cite that a reader would learn that the exercise took place.
I remember long ago when I was clerking and the issue was whether electricity was a "good" under Article 2 of the UCC. I was very hesitant even to look up what an electron was as a matter of fact, because where does one draw the line? A dictionary seems safe to look at, but what about a science book? What an electron is seems fairly indisputable, but what if the particular issue is debatable? How would the court even know if an issue were debatable if it hadn’t been addressed in the briefing? And how would the loser feel if s/he read a decision that goes into a long factual explanation which the loser never had the opportunity to contest?
In sum, these issues about courts engaging in their own investigations have always been there, but the web now makes it so easy to do — and makes the world of what is being looked at transient and open to manipulation.
Like everything else, maybe we just start with good sense. Parties should limit citations to authorative sites, like an agency’s, for narrow purposes, and maybe attach a hard copy to the brief for preservation purposes. Courts should be similarly prudent in their use and think of some way to preserve the material they cite.