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May it Please the Virtual Court

Courtroom in the Federal Building and U.S.Courthouse built by architect Henry B. Carter in 1938. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel.

In the United States, the Covid-19 pandemic has laid bare many social inequalities. At a time of record unemployment, poverty, eviction, and domestic violence crises, courthouses around the country remain closed. To slow the spread of the virus, the judiciary has been forced to digitize and move legal services online. 

For those in need of adjudication, the digital transformation of the American court system raises notable issues such as privacy concerns, stable broadband connection and most importantly reducing impediments to justice. Protecting public health is now paramount but one must consider how videoconferencing affects the pursuit of justice.

Practical Obscurity

Zoom has touted its role in allowing courts and law firms to continue their operations despite stay-at-home mandates and social distancing measures. Indeed, there are several benefits to conducting hearings remotely, like reducing travel time and fees associated with going to court and of course, slowing the spread of Covid-19.

Even so, the disadvantages of online hearings are significant. Online court proceedings pose significant threats to ‘practical obscurity’ or the interest of individuals to keep information public but not easily accessible to maintain privacy. 

The use of platforms such as Zoom or YouTube for virtual court poses risks, as anyone with internet access can rebroadcast, record testimony, photograph evidence and violate privacy rights.  In theory, anyone can waltz into a courtroom to watch certain hearings; however, the inconvenience of going to the courthouse, paying for parking, going through security, etc. dissuades the casual observer from taking such actions. In Zoom or YouTube hearings, tuning in takes only seconds. 

Courts can of course warn participants that screen-shots and recordings are strictly prohibited but tracking violations is difficult. Online, judges and bailiffs neither have the same amount of control over cell phone and camera use nor a clear view of spectators’ actions they normally would in the courtroom. Videoconferencing platforms such as Zoom are also not without their share of security concerns and not only to malicious third party actors. The platforms themselves may also store data shared in an unprotected manner. 

Zoom found itself in hot water earlier in April, 2020 for a series of scandals after it “mistakenly” routed user data through China after having previously promised the platform would not be vulnerable to spying from Beijing. Unsecured cloud storage left videos from thousands of Zoom calls exposed online and zoombombers harass and troll users regularly. These concerns not only have implications for the security of the information being shared in court proceedings but also for the privacy of those sharing.   

No Internet Found

The switch to digital calls into question the internet access gap as around 21 million Americans still lack a reliable high-speed connection. With everything now online, this has compounded the issue which is now so bad that many are relying on parking lot Wi-Fi where people may drive up to closed libraries parking lots to use the internet. 

This has obvious consequences to attending online court hearings but broader implications for equal access to the American justice system during Covid-19. People of color, the elderly and those with lower levels of education and income are less likely to have broadband at home. 

Moreover, roughly 1 in 5 Americans are smartphone dependent, meaning their primary source of internet at home is through a smartphone. This is more common again for non-white and low-income individuals. The lack of broadband and smartphone dependency presents challenges for those who must attend court and submit documentary evidence in online proceedings. Those without the proper remote technology may be denied the opportunity to fully present their positions which may impact the fairness of the court and its decisions.  

The Future is Now

A vaccine may help alleviate the pandemic but the economic and human consequences wrought by the slump in the American economy will continue to place pressure on the most vulnerable for years to come. This will translate into increases in certain types of court proceedings such as eviction and domestic violence cases. 

While it is easy to give anecdotal evidence that people prefer online hearings given their comfort and convenience, the most important consideration must be if the online switch will increase or hinder access to justice. A lack of access to the judiciary due to the digital divide could leave many in the US vulnerable to exploitation or even violence. Resource disparities must be recognized. The need to expand broadband access is thus critical to virtual court hearings since remote engagement will be the standard practice for the foreseeable future. 

The infrastructure to continue holding remote proceedings is being built and improved continuously. Should videoconferencing become more of a norm even after the pandemic, the security and privacy concerns associated with online court should be weighed carefully. Perhaps most importantly, studies on the implications of virtual hearings will prove crucial as the fairness of hearings could be affected by this new medium.

The views, thoughts, and opinions expressed in this article belong solely to the author, and do not reflect the views of Conversationally Speaking Magazine.
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