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Monday, January 29, 2007

Law - Citing Wikipedia, or the Internet in general - the concerns

The NY Times has an article today by Noam Cohen headlined "Courts Turn to Wikipedia, but Selectively." It begins:

When a court-appointed special master last year rejected the claim of an Alabama couple that their daughter had suffered seizures after a vaccination, she explained her decision in part by referring to material from articles in Wikipedia, the collaborative online encyclopedia.

The reaction from the court above her, the United States Court of Federal Claims, was direct: the materials “culled from the Internet do not — at least on their face — meet” standards of reliability. The court reversed her decision.

Oddly, to cite the “pervasive, and for our purposes, disturbing series of disclaimers” concerning the site’s accuracy, the same Court of Federal Claims relied on an article called “Researching With Wikipedia” found — where else? — on Wikipedia. (The family has reached a settlement, their lawyer said.)

A simple search of published court decisions shows that Wikipedia is frequently cited by judges around the country, involving serious issues and the bizarre — such as a 2005 tax case before the Tennessee Court of Appeals concerning the definition of “beverage” that involved hundreds of thousands of dollars, and, just this week, a case in Federal District Court in Florida that involved the term “booty music” as played during a wet T-shirt contest.

More from the article:
Many citations by judges, often in footnotes, are like Judge Posner’s, beside the main judicial point, appear intended to show how hip and contemporary the judge is, reflecting Professor Sunstein’s suspicion, “that law clerks are using Wikipedia a great deal.” * * *

As opposed to these tangential references, Wikipedia has also been used for more significant facts.

Such cases include a Brooklyn surrogate court’s definition of the Jewish marriage ceremony and the Iowa Court of Appeals’ declaration that French is the official language of the Republic of Guinea. In 2004, the Court of Appeals for the 11th Circuit, in Georgia, referred to a Wikipedia entry of the Department of Homeland Security’s threat levels in a ruling concerning magnetometer searches of antiwar protesters.

In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.”

Recognizing that concern, Lawrence Lessig, a professor at Stanford Law School who frequently writes about technology, said that he favored a system that captures in time online sources like Wikipedia, so that a reader sees the same material that the writer saw.

He said he used www.webcitation.org for the online citations in his amicus brief to the Supreme Court in Metro-Goldwyn-Mayer Studios v. Grokster Ltd., which “makes the particular reference a stable reference, and something someone can evaluate.”

I have highlighted some provisions in the article that I think are very important. Citing Wikipedia (where the infomation relied on may not always be accurate) is only part of the issue.

Citation to anything on the web is nothing more than a link to the location of a document on a server located somewhere in cyberspace. The document can be removed, the server can be taken down. That is one set of problems. They are addressed by sites such as WebCite.com, which describes iitself as "an archiving system for webreferences (cited webpages and websites)." More from the site:

Authors increasingly cite webpages in medical and scientific publications, which can "disappear" overnight. The problem of unstable webcitations has recently been recently referred to as an issue "calling for an immediate response" by publishers and authors.

The other set of problems involves the fact that the document may be changed, with no indication, meaning that the citation now leads to something other than that which the judge or author intended, and who is to know? Or the document may indicate it has been corrected or revised, but give no clue to what it said before. These are problems, as the ILB has written before, inherent in the Indiana General Assembly's website, as it relates to the Indiana Code, the Acts of Indiana, and the Indiana Register.

[More] The Wall Street Journal Blog has also referenced the NYT story - see the entry here, along with readers' comments.

Posted by Marcia Oddi on January 29, 2007 01:16 PM
Posted to General Law Related