Just a few days after the 7th Circuit Court of Appeals issued its opinion in his case, attorney Brian Paul searched for the website the court had cited and discovered not everything on the Internet is permanent.
One of the Web addresses included in Laouini v. CLM Freight Lines, 586 F.3d. 473 (7th Cir. 2009) was invalid, landing the Ice Miller LLP partner on an error page. Paul had encountered the growing problem of link rot.
“It was a bit frustrating because you always want to understand where the court is coming from and why it decided the way it did,” Paul said.
The term “link rot” is used to describe a URL that leads either to a 404 Error message or to a website that no longer contains the desired information. It can sometimes pose an inconvenience and other times present a major roadblock, especially in the legal profession where a high value is placed on precedent. The inability to find the original source can weaken the argument or cloud the understanding of the reasoning behind the conclusion.
Link rot is not limited to mom-and-pop websites or free websites that focus on popular culture. It has been infecting government, university and subscription pages.
As more attorneys, law professors and judges cite online sources like databases, journal articles, blog posts and even Wikipedia pages, instances of link rot are expected to increase. Already academia has been hard hit, but links to nowhere have also been cropping up in judicial opinions.
Paul, practicing for 14 years, has used electronic sources throughout his career. He is comfortable citing to online sources and sees more and more references to websites in court opinions and briefs.
The link rot alone didn’t surprise him. While Paul emphasized he does not think this was the fault of the court, he did acknowledge that he was caught off guard by how soon the Web address became inoperable.
“It’s the nature of the Internet,” Paul said. “It’s something judges and lawyers need to be aware of when citing websites.”
Finding what was lost
Before the Internet, documents were accessed by thumbing through a card catalogue and browsing through the stacks of books in the library or leafing through a thick file of court filings.
Today, with so much available online, searching for a website or digital document can be done without leaving the office.
In his office at the Ruth Lilly Law Library in the Indiana University Robert H. McKinney School of Law, research and instruction librarian Benjamin Keele demonstrated a cyber search to find what was once at the end of a rotted link. He began tapping his keyboard, entering domain names with key words, and using various search engines, including the Wayback Machine available at archive.org.
If the search fails to locate the online source, the person may have to start over by finding another article to support the argument. The problem is, Keele said, the newer article may not be as strong as the original material. The individual could be forced to rewrite a section of the paper or brief.
“I think everyone can sympathize with the idea there is a problem,” Keele said. “I don’t think there’s very high awareness of how to prevent or mitigate it.”
A law librarian’s 2002 study, “Runaway Train: Problems of Permanence, Accessibility, and Stability in the Use of Web Sources in Law Review Citations,” examined link rot in law journal articles from 1997 to 2001. It found 70 percent of the websites cited in the 1997 articles were invalid.
Keele re-tested those 1997 links in his own experiment in 2011 and found all the addresses were broken.
Brian Jones, partner at Bose McKinney & Evans LLP, relied on the Wayback Machine to find a lost website pertinent to a case he was litigating. Several emails obtained through discovery contained the link which had rotted by the time Jones typed the address into his computer.
With the search engine, Jones was able to retrieve about 80 percent of the website’s contents, enough for Jones to get his client a favorable settlement.
Since the dispute was settled, Jones admitted he isn’t sure if the court would have found a website located through a search engine to be admissible. However, the found website gave him such leverage going into settlement discussions that if a hunt was unsuccessful, Jones said an alternative might be to subpoena for a backup file from the server.
Although print has a permanence that some of today’s digital sources do not, librarian Helen Reed pointed out paper and ink also posed hurdles to research. She remembered spending considerable time calling other law libraries to see where the material was and then waiting on a photocopy or assuring the attorney a trip to Bloomington or Louisville would lead to the needed book.
Reed’s duties as the librarian at the William H. Miller Law Library, a public law library in Vanderburgh County, have changed as attorneys are able to access more information from their computers. However, even as print materials transform into electronic platforms, research retains its primary purpose of drilling down to the original source. And attorneys should realize that information on the Web today could be gone tomorrow.
“Now people think research is easy because it all comes to you over the Internet,” Reed said. “But that’s not necessarily foolproof either because of link rot.”
Judges on the Internet
Link rot is not as prevalent in judicial opinions as it is in journal articles, although Keele expects to see more and more broken links in documents from the bench.
A study published in 2013 in the Yale Journal of Law and Technology, “Something Rotten in the State of Legal Citation: the Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010),” found that 29 percent of the links cited in the justices’ opinions were invalid.
Neither Jones nor George Patton, his colleague at Bose McKinney & Evans, has run across an opinion that hinged on the contents of a website or could be misinterpreted if the online source was not available.
Still, Patton, who described himself as “old school,” said courts should stick to the record instead of “hopping onto the Internet.”
Websites can be biased and judges searching online for sources to bolster their opinions may not get reliable facts, Patton said. Instead, judges should be constrained to the pile of paper from the District Court that presents the case, gives the context and challenges, and discusses the lower court’s findings.
“I’m old fashioned,” Patton said. “I think judge should just cite to the record. If it isn’t in the record, it doesn’t exist.”
Bryan Babb, a partner at Bose, maintained the Web can be extremely helpful and link rot in a judicial opinion does not diminish the value of the Internet.
Still, he believes attorneys have a responsibility to the court. Whenever he cites an online source in a brief as background, he prints out a hard copy and inserts it in the addendum or embeds it as a PDF into the electronic file.
“I don’t want to make the court work really hard to find what I’m trying to direct them to,” Babb explained.
Jones works around the problem of link rot by giving a comprehensive citation so if the website disappears, the judge or other attorney will be able to input a few terms in a search engine and hopefully locate the information.
While he views broken links as merely an inconvenience, Jones does wish Web addresses would be preserved somewhere. He pointed to libraries keeping old books in humidity-controlled rooms and said maybe there should be some investment to keep links fresh.
At McKinney, Keele is part of a preservation effort that might be what Jones envisions. The law library is among a consortium of law libraries from around the world that are inputting Web addresses into a new online tool, perma.cc, where the website or information is frozen permanently.
Anyone can preserve a link by creating an account on perma.cc which will remain in the site’s archives for about two years. To permanently save the URL, an authorized member, like a law librarian or journal editor, has to vest it or confirm the Web address is cited in an article.
Keele compared the vested links to a collection in a law library. Librarians are well-suited for this task, Keele said, because they have an ethic of curation and monitor the needs of the patrons so they know what is relevant and should be kept. •