Tuesday, October 14, 2014

Law Firms Listen Up: Link Rot and Reference Rot Present Serious Risk Management and Associate Training Issues

 "Works of Scholarship have long cited primary sources or academic works to provide sources for facts to incorporate previous scholarship, and to bolster arguments. The ideal citation connects an interested reader to what the author references, making it easy to track, down, verify and learn more from the indicated sources." from Perma: Scoping and addressing the problem of link and reference rot in legal citations.

 Link Rot and Reference Rot: Beyond Inconvenience to Malpractice
  • Link rot refers to the obvious and easily identifiable phenomenon of broken links. When the linking page is missing we see the ubiquitous 404 error. message.
  • Reference rot is a more insidious problem. In "reference rot" the link still works, but the content of the page has changed. The principle or facts cited may have materially changed and new content may even contradict the original proposition being cited.

 In legal scholarship the problem is confined to the (not insignificant) inconvenience of tracking down an unavailable source. In litigation or in transactional practice, the inability to retrieve sources of facts cited to support a client brief or transactional deal has serious legal implications. Could a firm lose a case on appeal? Could a firm be accused of malpractice? Could reputations and careers be hung on the frail branch of a 404 error?
 Until I read the "Perma" article this week I was only aware of the concept of "link rot." I had heard about the sobering statistic that 49% of sources cited by the United States Supreme Court no longer link to the original content or page.
But the concept of "reference rot" made my hair stand on end... the implications for academic scholarship are significant, but the implications for law firms could be devastating. What happens when a law firm submits a brief citing a scientific study, a government report, an Open Web data set or a press release from a company website that completely vanishes or is materially altered? Can you imagine the young associate who has to face down the withering stare of a partner as (s)he explains that a key source has disappeared or contradicts the proposition for which it was cited? 

 Last March Jonathan Zittrain, Kendra Alter and Lawrence Lessig published Perma: Scoping and addressing the problem of link and reference rot in legal citations in Harvard Law Review. Contrary to popular belief, the authors point out that it is sometimes easier to find print sources which predate the Internet than to find  "born digital" references which no longer reside at their original URL. The problems are not confined to the obvious scenarios: Companies get sold and merge - and so do their websites. Private bloggers lose interest in their obsessions. Non-profit organizations, lose funding or lose focus. A webmaster loses their job or gets promoted... Even government websites as prestigious as the White House and the Department of Justice have removed and altered web content without indicating that a document has been revised and/ or replaced with a new version. The Internet is littered with the equivalent of "space junk" and law firms -- like the Supreme Court will find themselves unable to easily locate or recover the original Open Web sources, cited in their documents.
Worst of all --a cited website could potentially include altered content which contradicts the statements for which was originally referenced. There is a risk management/malpractice elephant in the room.  No one has yet developed software to redline and track changes on the Internet, but law firms need to consider what processes or tools they can employ to mitigate the consequences of the mutable and transient ocean of web content. Products such as Icyte, capture copies of web pages which you can store in a personal account, but what is a complex organization to do?

Possible Implications: 
1. It is time to require citations to open web sources to have date and time stamps.
2. The Internet can't be continuously 'redlined" to highlight changes over time, someone needs to develop this killer app.

2. Associates need to read and validate all cited authority. They may get to the website and find that the content has changed.

3. Law firms need to develop standard protocols for preserving cited pages. If Open Web sources are used they should be preserved as a PDF-type file  and associated with the citing document.
4. Do we need a "citation exception" to copyright law? Maintaining access to a source could require the copying of a volume of source material beyond what is normally considered “fair use.” If we can't count on website owners to preserve access  to digital content or to “redline” changes we need a legal way to preserve  whole websites, treatises, documents and datasets.
5.Love ‘em or hate ‘em, Lexis, Westlaw, Wolters Kluwer and BLaw offer  a mighty bulwark against an ocean of 404 errors. Their ability to offer permanent access to multiple versions of cited sources will provide an important value add over Open Web sources.

6. Digital Object Identifiers may offer a solution to determine if  a source has been replaced.
7. Bad URLs and transient web content will increase demand for librarian sleuths and knowledge management professionals.
8. The Perma Project is targeted at creating permanent access to legal documents. Law firms face the challenge of cobbling together technologies and processes which will assure permanent access to wide universe of non-legal content which they rely on in the course of litigation and transactional analysis. Information professionals should be tasked with developing standard protocols by examining practice needs, processes and available technologies to assure preservation of cited sources.
 Learn More About Link and Reference Rot

On October 24th Georgetown Law Library is hosting a program:404/File Not Found: Link Rot, Legal Citation and Projects to Preserve Precedent. Speakers include  Jonathan Zittrain one of the authors of the Perma article, Roger Skalbeck of Georgetown, Ed Walters of Fastcase and Mary Alice Baisch, Superintendent of Documents of the USGPO.  Unfortunately I will travelling and not be able to attend this program.   Roger Skalbeck   has agreed to author a guest blogpost on this very important Conference.
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A Researcher Finds the Following notice for the www.ssnat.com website which was cited in a Supreme Court Decision:

404 Error - File Not Found

Aren't you glad you didn't cite to this webpage in the Supreme Court Reporter at Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2749 n.14 (2011). If you had, like Justice Alito did, the original content would long since have disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the internet age.

And if you quoted this in the NY Times, will you do a correction for the now changed text?
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