by: Aaron W. Brooks
Digital storage systems raise a number of legal issues that are challenging yet manageable if they are fully understood. One such issue is managing the durability of electronic data when the original paper document is no longer available to remaster the digital image if it were to become lost or inaccessible. Paper is a physical object, and physical objects can provide a feeling of comfort that is hard to replace with an intangible stream of ones and zeros. When we think of paper’s longevity, we think of things like William the Conqueror’s Domesday Book, completed in 1086AD and still held intact at the United Kingdom’s National Archives. In contrast, the Domesday Book’s 1986 digital update, the BBC’s Domesday Project, was nearly lost just fifteen years after its creation due to the unavailability of obsolete technology needed to access it.
Needless to say, concern over the loss of electronic data is not unfounded. In 1969, the International Federation of Library Associations and Institutions coined the term “digital dark age,” referring to a time in which mass quantities of human information may become lost to the ages due to obsolete hardware needed to access the information, obsolete software needed to interpret older file formats, and degradation of electronic storage media. So too, while the International Organization for Standardization (ISO) defines “archival medium” as “material that can be expected to preserve images forever, so that such images can be retrieved without significant loss when properly stored,” it adds a reality-check notation, which states:
“As no such material exists, this is a deprecated term and as such is not to be used in International Standards for imaging materials or in systems specifications.”
Ignoring these concerns does nothing to address them. Rather, we must become educated about the issues, and use a best practices approach to solve these problems. This is why it’s important to address the challenges and limitations of digital storage your contracts.
The first approach to solving the concern about durability is to use global standards and nonproprietary file formats in every place possible. A good example of this is to store documents in the form of a Portable Document Format (PDF), which is a globally recognized standard for storing electronic versions of documents. Another good example is to create and store document data using Microsoft Word, a globally recognized, albeit proprietary, format for creating and manipulating electronic documents. Choose global standards over ease of use, and be specific about this in your digital storage agreements. The more globally used a file format, the less likely it will degrade into obsolescence, and the more global resources will be committed to maintaining it long term.
The second approach to solving the concern about durability is to stop storing your own information and use professional cloud-based providers instead. This seems counterintuitive; it’s tough to accept that the best method of preserving your digital data may be to give it to another person you’ve never met. I provide guidance about cloud storage agreements in this earlier blog article: Store Your Data in the Cloud with Confidence and Security. Understand that electronic information tends to degrade when it sits still on a storage medium. For example, magnetic storage media, such as digital tapes and hard drives, both of which are commonly used methods of backing up digital information, have a life expectancy of about ten years. If the data sits upon them unused for long periods of time, it can become corrupted long before that. Magnetic media devices are also damaged easily, and subject to theft or other types of physical loss. To address this problem, professional data centers use massive storage servers which are constantly maintained and the information stored within them is frequently refreshed to prevent degradation. Using good contracting techniques, you can procure these benefits of cloud storage while understanding and managing your legal risk appropriately.
Digital storage systems are an increasingly important component of any company’s information management structure. Give us a call for help with the legal issues that you need to consider.
Aaron Brooks is Of Counsel to HolmstromKennedyPC in Rockford, where he serves as the firm’s Chief Information Officer and Intellectual Property practice group leader. His practice focuses on technology-based transactions, privacy law and information security.