|
 Web Content Meets Records Management
The Web has revolutionized businesses and governments around the globe
bringing with it unprecedented challenges and opportunities.
By Diane Marsili
October 2002 - The Internet delivers the same information,
documentation, and records we have come to depend on and value in the paper
world in a highly accessible, far more efficient and easily understood
medium. The goal now is to apply the proven business policies and practices
of the past and translate them to this e-Business world. In order to fully
leverage the Internet, businesses must be diligent in capturing, retaining
and managing Web transactions for the important electronic records that they
represent.
While the Web has forever changed the way we gather information,
communicate and conduct business, it's the highly dynamic and personalized
Web content and the transactions performed on the Web that present records
managers with the greatest challenge.
It's no surprise that our legal system is paying close attention to the
Web and its content too. Several new laws have been passed which give
electronic information published on the Web the same legal status as its
paper counterpart. Web content, therefore, needs to be viewed in a different
and more critical manner than ever before.
Rich Content On The Web
A driving force for the Internet's continued growth is the seemingly
unlimited volume and type of information now available. Web pages commonly
contain audio files, video streams, graphics, pictures, forms, e-mails and
more. Collectively referred to as rich content, it makes each Web page a
focal point for closer scrutiny.
Consider that today the surface of the Web contains 2.5 billion pages but
the 'deep Web' is estimated to be up to 2,000 times greater or over 7,500
terabytes of information. It is estimated that in three years we will double
the amount of information that took us 300,000 years to produce. A driving
factor is rich content. Rich content will continue to push the Internet into
many areas considered unthinkable before. Combined with the decreasing cost
of storage, new applications and paradigms thought to be technically or
economically implausible in the past will become widely available.
Government's Role
In governments around the globe, moves are underway to digitize and
eliminate paper. In the United States, GPEA (The Government Paperwork
Elimination Act), scheduled to go into effect on October 21, 2003, lays a
foundation for the U. S. Government to conduct business wherever possible in
an electronic form, thereby eliminating, or at the very least, significantly
reducing our reliance on paper. GPEA's enactment will have a profound effect
on the way government conducts business. The federal government will procure
products and services online, provide information and allow constituents to
access personal information. The results of such an investment are better
services, reduced costs, and a happier public.
Other U.S. laws like E-SIGN (Electronic Signatures in Global and National
Commerce Act) coincide with this regulation by giving electronic records,
signatures, contracts and agreements the same legal effect as paper. Similar
laws are being introduced or already passed in Australia, Canada, Europe and
the United Kingdom. Clearly the driving force behind all this is the
Internet and our growing reliance on electronic commerce. Consequently,
legislation has been quickly enacted to remove the barriers to streamlined
business processes. Now government has two major roles; 1) clear the way for
business, 2) practice what it preaches.
Recording And Managing Web Content
Why is Web content recording so important? Businesses have
enthusiastically embraced the Internet. Governments around the world are
taking major steps to move fully online wherever possible. The result is
that the volume of Web content is increasing at a spiraling rate. Today's
Internet environment is reacting to this information explosion and adapting
to government's new laws to more easily facilitate electronic commerce. It's
no small task.
Electronic information has proven to be admissible in court. E-mail is a
clear example of this. Web content, another form of electronic information,
is therefore also legal. Think of all that is represented on Web pages. They
may provide access to FAQ's, product information in the form of white papers
and downloadable applications, marketing information promoting features and
pricing of a product or service, or actual contracts such as click wrap
agreements, which are legally binding transactions. If you take any of these
Web documents and compare them to their paper counterparts, you will see
that the need to retain these Web records is essential in order to meet
records management guidelines and ensure an enforceable contract.
If a record conveys content, context and structure in the four-cornered
world of paper, wouldn't we expect the same in a four-cornered e-World? The
easiest way to capture the true dynamics of Web content is to capture all
the information on the Web page and any related pages the user views. This
approach not only captures the actual transaction data as it happens, but
also captures the intent and process of the transaction which is paramount
in the new laws governing electronic commerce. The E-SIGN bill states
"...The term 'electronic signature' means an electronic sound, symbol or
process, attached to or logically associated with a contract or other record
and executed or adopted by a person with the intent to sign the record."
Therefore, it is quite clear that intent and process needs to be
demonstrated in any online transaction. Capturing the data alone falls far
short of this core requirement.
Legal Implications
Legal concerns abound in many areas related to the Internet. Many
companies don't realize they are at risk or have underestimated their
potential exposure to litigation and loss, effectively playing a kind of
Russian roulette. They operate under a false sense of security that is bound
to be shattered. The Gartner Group reported on August 16, 2001 that a widely
publicized court case regarding the repudiation or non-repudiation of an
electronic signature will set precedents for technologies and processes
required to record electronically signed records by 2004.
Consider Specht v. Netscape Communications Corp., 00 Civ. 4871, which set
a precedent when the Court ruled that because of a poor process within the
Web application, where a user could download software without viewing the
license agreement, the intent of assenting to the terms was not established.
Therefore, since it was unclear as to whether the user had agreed to the
terms, a contract had not been formed. Although the license agreement itself
would have been valid, the way in which it was displayed on the Web page
itself and the process that delivered it were flawed, which resulted in it
being unenforceable. The court said:
Netscape's Smart Download, in contrast, allows a user to download and use
the software without taking any action that plainly manifests assent to the
terms of the associated license or indicates an understanding that a
contract is being formed...The primary purpose of downloading is to obtain a
product, not to assent to an agreement. In contrast, clicking on an icon
stating "I assent" has no meaning or purpose other than to indicate such
assent. Netscape's failure to require users of Smart Download to indicate
assent to its license as a precondition to downloading and using its
software is fatal to its argument that a contract has been formed. ...From
the user's vantage point, Smart Download could be analogized to a free
neighborhood newspaper, readily obtained from a sidewalk box or supermarket
counter without any exchange with a seller or vendor. It is there for the
taking. This speaks volumes about capturing the many steps involved in order
to prove the intent and process of an agreement generated on the Internet.
Attorneys familiar with the legal implications of Web content agree that
capturing the environment or context of an electronic transaction will be
required in order to support the transaction or agreement. This is in
addition to the invaluable benefit a company can realize in terms of
improved customer service and online customer trust. If electronic records
are indeed the only complete record of an event or transaction, then they
should be kept in the form in which they were created
The New Paradigms
In the Specht case we begin to see the first of precedents that will
determine the proper and legal interpretations of electronic records. It
makes sound business sense that electronic records should be kept in the
exact form in which they were created, complete in every way. Keeping a
record of your Web-based electronic records becomes essential because:
- the actual content, context and structure are required to demonstrate
intent and process on transactions and agreements
- An electronic record can provide proof of compliance with various
regulations
- The Web record contains intellectual property
- The "here now, gone in a second" dynamic nature of the Web is next to
impossible to recreate
- Customer service and online trust are greatly improved
A new paradigm has arisen seemingly overnight. The Specht case didn't
involve millions of dollars, but it could have. A challenge to any component
or practice of a website can undermine the integrity of the complete
e-Commerce infrastructure. The stakes for mishandling electronic records are
high. Electronic information that becomes a record and originates from the
Web needs to be securely captured, stored and readily available. Keeping
this information in its original format will be an essential resource for
business and government to effectively conduct business on the Internet. |
