LITTLE ROCK — Arkansas is the first state in the nation to make the online version of its appellate court opinions the sole official version, leading some to wonder how secure those rulings will be in a world of hackers or under the control of a perhaps less-scrupulous future state Supreme Court or Court of Appeals.
The state did away with the practice of publishing hard-bound volumes of the opinions as of July 1.
Supporters of the change say printing the Arkansas Reports wasted money. It cost $265,000 last year.
Although the court began posting its opinions online in 1996, the versions posted online from now on will be the official versions.
Hard-copy versions won't vanish altogether. West, a ThomsonReuters company, will continue to publish Arkansas appellate court opinions in its Arkansas Cases and South Western Reporter publications, said Gretchen DeSutter, a West spokesman.
But those publications won't be the official opinions.
Associate Justice Donald Corbin dissented when the Supreme Court adopted the rule that created the change, but issued no written opinion that might have explained his reasoning. He declined to comment for this article.
Does the change in practice open a door to an Orwellian scenario in which opinions may be tampered with or inconvenient truths be whisked down a memory hole?
Or are such fears groundless?
It's a world in which "identity theft" has emerged through the misuse of electronic data, online banking clients are urged to check their accounts to see whether the money is still there and to change passwords now and again to perhaps thwart someone from wrongfully emptying the accounts, scads of credit-card data are swiped and sold overseas, and other online crimes come and go.
State Rep. Steve Harrelson, a Texarkana Democrat who sponsored the bill that authorized the switch to electronic opinions being the only official version, said the issue of security wasn't debated in the Legislature.
"One reason is probably because Justice Paul Danielson helped shuffle some of this through. He came [to the House Judiciary Committee] armed with a lot of information because he convened a Supreme Court committee who really studied the issue well and presented the issue to us in such a manner that there wasn't much debate," Harrelson said.
He conceded that hacking is theoretically possible.
By and large, people connected with the court or the law field say they're comfortable with the switch in the court's practice, though they can't vouch for the absolute, total security of the new system.
Chief Justice Jim Hannah said "anything is possible," but that it is "very, very unlikely" that opinions could be surreptitiously altered by anyone within the court's apparatus without being found out.
He pointed to "the safeguard we have" and the "many eyes watching" the opinions.
"I read every opinion," he said, adding that the same happens with the staffs of the other justices.
"And we have the court reporter and her staff," Hannah said. "We think we have the safeguards in place."
Hacking is always a possibility, said Ben Houston, hardware manager for the Administrative Office of the Courts.
But, he said, multiple firewalls - steps designed to thwart unwanted intrusions into a computer network - and other security measures like limited access to servers (computers that work with other computers) and passwords would make it difficult.
Greg Hurley, a knowledge-management analyst at the National Center for State Courts in Williamsburg, Va., said there are "certainly" security risks inherent in electronic publication.
But, he added, "people will download these things and it would come out" if anything was altered.
That's the view of John DiPippa, dean of the Bowen School of Law at the University of Arkansas at Little Rock.
"If there were any changes, a lot of people out there would notice," DiPippa said, adding that attorneys, legal scholars, journalists and others closely follow the state's appellate court rulings.
"The possibility that a future judge might try to change an opinion and get away is remote at best. The notion that judges can secretly change an opinion and that the change will be significant shows a lack of understanding of how the system works and how judicial cases are used. I imagine that there will be safeguards in place that will prevent the lone 'bad apple' judge from secretly changing an opinion," DiPippa said.
On the Supreme Court, at least four judges must vote for the particular holding, so if one of them tries to change the case, the other three will probably notice, DiPippa said.
DiPippa said "a hypothetically unscrupulous future judge would find it almost impossible to make a significant change to a case by changing a few words ... Bottom line: The public nature of judicial opinions and the uses to which cases are put in our kind of legal system make it highly unlikely that a lackof a paper volume will be a problem."
Hurley, too, said a future court wouldn't have to resort to "sleight of hand" to alter legal history - the court could just establish a new precedent by ruling differently.
In addition, a paper version should still exist, one that would be kept in the court clerk's office. That unofficial copy might be annotated with ink to reflect changes made between the time the first-released opinion was written and the time when the official edited version was published online, said Susan Williams, reporter of decisions for the Supreme Court and the Court of Appeals.
Any discrepancies between the official opinion and the West publications are cleared up by communication between West and the appellate courts, DeSutter said.
"It works both directions. The court provides corrections and clarifications to us. Our attorney editors contact them and ask for clarification," she said.
Williams and her editorial assistant, Jeffrey D. Bartlett, and her deputy, Susan Johnson, have access to the opinions.
"It's a multistep process," Williams said. "One person is charged with posting opinions online [Williams' editorial assistant], then I or the deputy reporter will make the corrections to the opinions that have been approved by the court. Once we make those corrections and send it back for posting to the Web site [by the editorial assistant] for the final version, nomore changes [are allowed to] be made by anyone."
Also, the document-managing system has an audit trail that could track any internal tampering, she said.
In addition, the electronic opinions will have a digital signature. That's something like a security measure akin to an official seal on a piece of paper or a hologram ona driver's license. It would indicate if anyone tampered with the opinion.
At the moment, the digitalsignature feature doesn't exist. It hasn't been developed yet, Williams said, though posting opinions online as the sole official version began Sept. 2 with opinions that were marked "slip opinion." Those are official, but not final, she said. The final versions will be posted perhaps in a month or so, after editing that is part of the court process.
The state didn't hire an independent consultant for the switch to electronic-only publication of the opinions, but did talk to other states and the federal courts, Williams said.
"Other states are on the cusp, but we just went ahead and went for it," she said.
In 2003, the Supreme Court asked for attorneys andjudges to comment on doing away with the hard-bound volumes and received 19 responses, mostly opposing the move.
Most of the opposition cited tradition or history for their preference, although some lawyers and judges said they were more comfortable researching opinions on paper than online.
One of those in opposition was then-15th Judicial District Circuit Judge Paul Danielson, who said he preferred the hard-copy opinions. Danielson, now a Supreme Court justice, was one of the majority that approved the change earlier this year.
The cost savings are likely to persuade other states to follow suit, Hurley said.
"I expect to get a lot of calls about this," he said. "I'm surprised Arkansas was first. I would have expected New York or California."
Northwest Arkansas, Pages 19, 23 on 09/20/2009