Here Today, Gone Tomorrow: Internet Citations in Hawaii Appellate Opinions

• Publication year: 2018
• Citation: Vol. 22 No. 03

Here Today, Gone Tomorrow: Internet Citations in Hawaii Appellate Opinions

by Hon. Todd Eddins

When John Calvin conjured "here today, gone tomorrow," he had in mind the briefness of the human lifespan. Calvin could not have imagined that his proverb in 1549 would speak to Internet citations in 21^st century Hawai'i jurisprudence.

Approximately 39% of citations to online sources in Hawai'i's appellate cases prior to 2017 no longer work. This article discusses the problem of disappearing content in legal citation to Internet sources, examines the use of Internet citations in Hawai'i appellate decisions, and proposes a solution to online source material being accessible today - but gone tomorrow.

Citation to impermanent Internet addresses

Citation to web-based materials in appellate opinions, briefs, and legal memoranda is conventional. Online source materials include manuals, guidelines, legislative history, laws, rules, and statistical data from government websites, as well as dictionary definitions, media publications, reports, and specialized information from private and non-profit websites.

The trouble for legal writers is that nothing about a website address (or URL) guarantees that the cited resource survives at the location. URL stands for Uniform Resource Locator, but it may as well be the acronym for Unreliable Resource Locator.¹

The impermanence of the Internet causes content to be displaced - or worse, to change or disappear. Over time, websites are reorganized, shuttered, relocated, or neglected. Cited resource materials can migrate, morph, or vanish.

Link Rot

"Link rot" was coined to describe a web address that no longer works. It is "the tendency of hyperlinks to become invalid over time due to sites changing or vanishing."² The maddening "404 Not Found" error code often appears.

Link rot is not limited to legal writing. "[T]he scholarly literature of law, medicine, science, and the humanities rests on a foundation of footnotes riddled with broken URLs."³

The first Hawai'i appellate citation to an online source is a fine specimen of link rot.⁴ On March 30, 2001, an opinion from the Intermediate Court of Appeals ("ICA") referenced a National Highway Traffic Safety Administration publication to discuss "vertical nystagmus," an indicator of impaired driving.⁵ Today, the link is missing. Like many government websites, the NHTSA packed its link and did not extend the courtesy of a forwarding address (or redirect).

Some online citations immediately succumb to link rot. There is no spellcheck for a URL's irregular jumble of characters.⁶ On September 11, 2001, the Hawai'i Supreme Court misspelled our state's name.⁷ With the omission of the letter "a," the court's citation to www.capitol.hawiri.gov to show legislative history was doomed from the start.⁸

Reference Rot

"Reference rot" is link rot's accomplice. Reference rot occurs when a citation to a URL no longer produces the information originally referenced. The link "still works but the information referenced by the citation is no longer present or has changed."⁹

Unlike printed material, online content is fluid. When writers tag "last visited" to Internet citations, they concede that content is not static - and may not be what it purported to be. Website operators are, after all, free to make changes or updates to content any time.

Due to government or business transition, source material can be scrubbed away and replaced with alternative information.¹⁰ In a 2011 concurrence, Justice Alito cited a website link in a case holding that video games qualified for first amendment protection.¹¹ Today, navigation to the URL roasts Justice Alito and waxes on the transient nature of web-based information.

Aren't you glad you didn't cite to this webpage in the Supreme Court Reporter at Brown v. Entertainment Merchants Association, 131 S.Ct. 2729, 2749 n. 14 (2011). If you had, like Justice Alito did, the original content would long since have disappeared and someone else might have come along and purchased the domain in order to make a comment about the transience of linked information in the internet age.¹²

The purpose of appellate citation

Appellate citation serves two chief functions: a documentary or authoritative function, where the court identifies the resources examined in developing and supporting the opinion; and an access purpose, where the court provides bibliographic information so that an interested reader can locate and examine the original source material used by the court in its analysis.¹³ "The ideal citation connects an interested reader to what the author references, making it easy to track down, verify, and learn from the indicated sources."¹⁴

When links cited injudicial opinions decay, the purpose of citation is undermined. "Link and reference rot in appellate briefs and opinions diminish public confidence in the legal system."¹⁵ In other words:

When . . . a court purportedly bases its understanding of the law or the law's application to case facts upon a source that cannot subsequently be located or confirmed, the significance of the citation of that source becomes more ominous. If present readers of the opinion cannot determine how much persuasive weight was or should be accorded to the unavailable source, they have little reason to place much confidence in the opinion's authoritativeness."¹⁶

The increase in citation to online source material

One reason for the proliferation of Internet citations is that official versions of documents are now routinely published and disseminated online.¹⁷ Government, commercial, and non-profit entities face economic realities posed by the high cost of publishing. So expenses are curtailed by only publishing primary source information online.

"Born digital" is the prevailing (if over the top) expression for materials published directly to the web. In 2013, 97% of all federal publications were projected to be "born digital."¹⁸ The following year, the federal government acknowledged the massive migration of government publications from paper to being "born digital." On December 17, 2014, the venerable Government Printing Office (GPO), established in 1861, was renamed the Government Publishing Office.¹⁹

Another reason for the surge in citation to websites is the feeling that they permit easier and cost-free access to the source material.²⁰ Instead of roaming library shelves or paying commercial entities, a reader can retrieve the cited material with a keystroke.

Free, instantaneous access to a resource is, of course, laudable. However, not all websites have an interest in preserving links. While resource material can be accessed with a keystroke, with another keystroke a website host can defeat the purpose of legal citation by making the material inaccessible.²¹

Injecting razzle dazzle into a judicial opinion will always be a motivation for website citation. In the second instance of a United States Supreme Court Internet citation, Justice Ginsburg quoted Hawkeye Pierce to discuss the common understanding of the verb "carry:"

[I]n the television series "M*A*S*H," Hawkeye Pierce (played by Alan Alda) presciently proclaims: "I will not carry a gun.... I'll carry your books, I'll carry a torch, I'll carry a tune, I'll carry on, carry over, carry forward, Cary Grant, cash and carry, carry me back to Old Virginia, I'll even 'hari-kari' if you show me how, but I will not carry a gun!" See http://www.geocities.com/Hollywood/8915/mashquotes.html.²²

The second instance of an Internet citation in Hawai'i also had flair. ICA Judge Lim, a celebrated logophile, cited an article posted on www.cyberboxing.com to debunk the myth that ringside reporters helped Jack Dempsey through the ropes during his 1923 heavyweight championship knockout of Luis Firpo.²³

Given the fly by night platform of the Internet, are citations to online sources in Hawai'i judicial opinions serving their intended purpose? One way to answer the question was to examine Hawai'i case law in a manner akin to studies that have analyzed the United States Supreme Court's use of Internet citations.

The search for Internet citations in Hawai'i appellate cases

A Westlaw and Lexis-Nexis search was conducted, which replicated the search used to uncover United States Supreme Court website citations in studies published in the Yale Journal of Law and Technology and Harvard Law Review Forum.²⁴ Hence, to find all possible web based citations in Hawai'i state appellate cases, the search terms used were: "(http! or www) or ((available or found or visited or...