Scripta Volant Quoque

The Romans said ― or, more likely, wrote ― that while words fly away, writing remains. Russians say that what is written with the quill cannot be hacked away with an axe.  The idea of the permanence of the written word is very widespread. It is part of the law, too, whether in the rules on proving the existence of a contract or in those on defamation. But the internet is putting it under considerable pressure, from both ends. On the one hand, words that would once have been spoken and fleeting are now written and can be read years later. (I have discussed an example of the consequences this can have here.) On the other, online writing can be more ephemeral than the old-fashioned sort, as a paper by Raizel Liebler and June Liebert recently published in the Yale Journal of Law & Technology shows.

It is a study of the citations to websites in opinions of the U.S. Supreme Court, showing that a considerable part of the hyperlinks given as references in such citations no longer work. Judges are citing online materials ever more often (indeed, as I wrote here, they no longer rely on the submissions of parties but run their own searches to find such materials). In total, between 1996 and 2010, “114 majority opinions of the Supreme Court included links” (280). But, as websites are restructured or even taken offline altogether, links to them can “rot” ― they no longer lead to the page containing the information that used to be there, or indeed to anything at all. As a result, “[o]f the URLs used within the U.S. Supreme Court opinions [between 1996 and 2010] 29% … were invalid” (298).

That can cause serious problems to those―scholars, journalists, and citizens―who want to see for themselves the information that the Supreme Court has relied on in reaching or at least justifying its decisions. Of course, sometimes the information is still available, having only been moved to a different address and being still accessible by a simple search. But in other cases, it might be gone altogether. Sometimes, the information might be more or less tangential. But sometimes it might be central to the Court’s decision. In short, this matters.

I do not think that similar research has been done in Canada, so I have come up with a little anecdotal evidence of my own. It is not very encouraging. Our Supreme Court seems not to be as enthusiastic as its American counterpart about citing online sources ― so far as I can tell, it has done so in only 54 cases. (The earliest of these was Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; it took another three years until the second R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2). But the “link rot” rate in its citations might be every bit as high or even worse. Of the links in the five oldest cases to cite any, not a single one still works, though one (to a UN page, referenced in Pushpanathan) leads to an automatic re-direct, and so is still useful. The rest lead either to error messages or even to an offer to buy the domain on which the page linked to had once been posted (a page belonging  to the BC Human Rights Commission ― which has since been abolished). Of course, it seems like a safe bet that a greater proportion of links in the more recent decisions work, but will they still do 10 years from now?

Lest this post be considered as a Luddite proclamation, I should point out that it is not as if paper documents courts cite to cannot become unavailable. Old books, government reports, or academic journals can be buried in libraries and archives, accessible only to hardiest researchers―when not physically rotten or eaten by rats. On balance, citation to online references may well make sources more rather than less accessible. Still, it is not without its problems. The permanence of the written word can no longer be taken for granted.

H/T David Post

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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