By: Gabrielle Gravel
When the world stood still in March 2020[1], courthouses all over the nation had to keep their dockets moving.[2] The grand solution was to turn court into one big video chat, where everyone—even unaffiliated onlookers—would have equal access. The widely used Zoom platform allows meeting hosts to livestream directly to YouTube.[3] Anyone in the world with internet access can tune into bond hearings in Georgia or a probation calendar call in Kansas. While the option of moving in-person proceedings to a virtual format can be even more convenient to the conventional model, this “new normal” poses a new threat to privacy.[4] Verbal warnings from judges and their court rules on webpages can only go so far. This blog proposes public policy arguments and concrete solutions to the laissez-faire approach to privacy in criminal court proceedings.
On the heels of a global shutdown in the wake of COVID-19, the judicial branch, and courthouses all over the country turned to technology to keep their very full calendars in motion.[5] A virtual approach began to mitigate the hundreds of thousands of jail detainees awaiting their trials with no concrete end in sight.[6] Depending on the jurisdiction, there are specific foot traffic confines for courthouses, limiting the number of witnesses, counsel, and court staff allowed in the courtroom.[7] Many citizens summoned for jury duty have also expressed their own discomfort serving in-person during a pandemic.[8] The solution was to move the myriad of required criminal hearings, jury selection, civil hearings, and in some cases, even jury trials, to the now commonplace Zoom platform.[9]
By moving court to Zoom, the judicial branch’s success is twofold in reducing foot traffic in normally packed courthouses and meeting constitutional thresholds.[10] Parties were still guaranteed the rights of due process, equity and the promise of the right to a speedy and public trial by jury.[11] First Amendment concerns of the right of the press and public to observe the courts more generally are also upheld by this switch.[12] Some judges have found the convenience and success of virtual court so rewarding that they plan to use this resource when being in person is no longer a health concern.[13] While judges are still working out the various kinks in such a system, this blog argues that there are currently not enough safeguards in place to protect the privacy of these individuals. This blog also offers an array of solutions to implement for a safer Zoom Courthouse.
What Does Zoom Court Look Like?
From my experience, Zoom Court typically begins with a judge alone on the bench or with an official-looking courtroom projection in the background. Incarcerated defendants can “appear” in court via a webcam in the jailhouse, managed by corrections deputies. Attorneys can represent their clients without ever meeting them in person. Judges can sift through more cases in a day and more quickly compared to the down time of shuffling defendants in and out of the courthouse.
While this solution has helped tremendously to support social distancing measures, the impact on privacy in these proceedings is cause for concern.[14] To uphold constitutional integrity, criminal court hearings are to be open to the public[15], and by live streaming directly from Zoom to YouTube or Facebook Live, the judiciary can maintain this canon of the criminal justice system. Prior to a proceeding, the judge or their court clerks will give a brief introduction on how the process will work depending on the type of hearing. In the many criminal hearings that I have observed, the judge will remind everyone that making any recording of the livestream is prohibited. Next, they’ll warn anyone speaking that they should be careful not to disclose any personal information such as social security numbers or home addresses.
What’s the Difference Anyway?
There are obvious challenges to a virtual courtroom—some being the difficulty for parties to understand what’s going on in their proceeding, hindering counsel from providing effective representation, and the possibility of the court’s perception of defendants and witnesses facing prejudice.[16] The regular rules of the courtroom are not easily enforced over camera, leading to disciplinary warnings slowing down court proceedings. From personal experience, I’ve seen parties driving, lighting up cigarettes, in various stages of undress, and screaming profanities without realizing they’re unmuted—all broadcasted on Zoom.[17] Under the standard model, an interested party would need to schlep it to the courthouse, take off work, find childcare, and maintain courtroom etiquette while observing court. The people attending such hearings had enough interest in viewing the proceeding that the sunk costs related to physically traveling to the courthouse were outweighed by the benefit of observing the proceeding firsthand with their own two eyes. Jennifer Storm, a victim advocate in Pennsylvania broke down the dangers of livestreaming:
Streaming court proceedings on the internet is entirely different from allowing citizens to attend hearings…[L]ivestreaming courts creates serious privacy concerns for witnesses and jurors, who may be reluctant to participate if their appearances could end up on YouTube.
Privacy concerns extend to criminal defendants as well, Keith said. Defendants are often acquitted, have the charges against them dropped or later get their records expunged or sealed. But a video of a hearing can live online indefinitely, making sealing or expungement pointless.[18]
In this new era, anyone with internet access can stumble upon an American criminal court livestream and tune into some of the most personal (and sometimes detrimental) information in a defendant’s life. As Strom points out, these viewers can come across custody disputes and personal injury cases where medical information and photos of injuries are being broadcasted.[19] Outside of law students, officers of the court, and people involved with the case, Strom is made uncomfortable by random viewers.[20] Zoom itself is not a totally secure platform.[21] The FBI has warned of “Zoombombing” in which hackers can hijack a Zoom meeting altogether.[22] This is yet another variable that the bailiffs and metal detectors in the courthouse cannot protect parties from. Professor Sarah Lageson of Rutgers University explains that the notion of heated litigation could prevent parties from going forward with sensitive case like employment discrimination and harassment if they know they could wind up on Facebook Live for everyone they know to see.[23]
Although I have heard judges promise as part of their opening spiel that criminal livestreams are to be removed immediately upon the conclusion of the hearing, this promise is not always followed through on or offered. Anyone can go on YouTube and find criminal livestreams dating back to two hours ago, last week, and even 2020. [24] Moments of litigants’, attorneys’, and judges’ lives are now preserved online for anyone to see. Sensitive information about domestic violence, child abuse, mental health, and other personal matters can still be viewed when the attendees were promised no one would see their proceeding after it ended. Douglas Keith, counsel at the Brennan Center for Justice, explains that once judges relax their diligence, courts “could have very little control over what people actually do with [the footage].”[25] I find this facet not only frightening, but as a failure of the courts to protect those individuals who have no choice whether they have to come to court.
In a survey on remote criminal proceedings reported by in the Texas Tech Law Review, a large majority of judges and defense attorneys agreed that online proceedings saved time or resources for the court and litigants.[26] While this is certainly true, there is doubtlessly a costly tradeoff.
Does Anyone Take the Judge’s Warnings Seriously?
Although warnings not to record are very serious with equally serious consequences if caught, there is absolutely no guarantee that each attendee is listening, understands this warning, or will abide by these rules. Zoom attendees consistently slip up and blurt out information they shouldn’t.[27] Instead of this being a mere blip in a courtroom, a much wider audience can now access this information, and put it to whatever use they desire. Contrastingly, during an in-person proceeding, if someone in the gallery was caught by a bailiff recording anything, they would be held in contempt[28] while someone online would presumably never be found out. Court websites containing streaming links warn spectators not to record any aspect of the streaming. The Cook County, Illinois Courthouse website offers this toothless sentiment above the links to livestreaming:
Warning: Recording, video/audio taping, photographing or otherwise reproducing, saving or distributing the remote Zoom/YouTube feeds is strictly prohibited. The recording, publishing, broadcasting or other copying or transmission of courtroom proceedings by video, audio, still photography or any other means is strictly prohibited by Illinois Supreme Court Rule 63(A)(8) and is subject to the penalties for contempt of court.
Warning: Mature subject matter being streamed.[29]
Nothing about this warning excerpt can reach through the screen and put a “livestreamer” in contempt of court. The odds of someone actually reading this warning and taking it seriously before clicking to the livestream is low. Courts in California, Georgia, and Washington share similar warnings.[30] Judges will snap at defendants and witnesses not to share personal information such as names and addresses, but we are only human, and precious information is now being broadcasted to an incredibly wider audience than ever imagined by the Framers.
What Would You Do?
When the Constitution required public access to the courts, the Framers couldn’t have imagined this public access would be available through a computer screen from anywhere else in the world.[31] While there is not one correct way to meet this publicity standard, I believe the privacy concerns posed by livestreaming to YouTube or another platform outweigh the public access guarantee of using these platforms with such wide reach. Besides allowing for court to continue in a pandemic, increased observation and visibility in the courtroom brings a high level of accountability for judges, prosecutors, and defense attorneys.[32]
I have several proposals that will work to uphold the integrity of court proceedings while providing sufficient level of public access. First, courthouses can’t physically accommodate hundreds of viewers for a single calendar, so courts should use software that allows hosts to limit viewing, unlike YouTube or Facebook Live.[33] Further, the court can use its discretion not to stream particularly sensitive cases when there are compelling reasons.[34] For example, Milwaukee Judges in Children’s Court have already choosen not to livestream confidential cases.[35] If there are individuals who want viewing access to a sensitive case, judges have sufficient clerk staff who are able to disperse a Zoom link to interested individuals.[36]
Most easily executed, jurisdictions could mandate that any livestream is immediately terminated upon completion of the proceeding and a warning stamp like the one on Cook County’s website could be on the actual screen of all livestreams.[37] In addition, following the standard set by Judge Stacey Hydrick in DeKalb County, Georgia, proceedings conducted in-person do not need to be live streamed as the public has an opportunity to observe in the courtroom.[38] A more extreme safeguard could be to prosecute individuals who distribute recordings or share livestreams online. Each of these solutions, with the exception of prosecution, cost almost nothing to implement. In exchange, each solution would offer extensive privacy protection to litigants and uphold the integrity of the judicial branch as we ‘zoom’ through these unprecedented times.
[1] AJMC Staff, A Timeline of COVID-19 Developments in 2020 (Jan. 1, 2021), https://www.ajmc.com/view/a-timeline-of-covid19-developments-in-2020.
[2] Eric Scigliano, Zoom Court Is Changing How Justice Is Served, The Atlantic (Apr. 13, 2021), https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392/.
[3] Id.
[4] Jack Karp, Virtual Courts Lead To Tension Between Access And Privacy, Law360 (Jan. 28, 2021), https://www.law360.com/articles/1348795/virtual-courts-lead-to-tension-between-access-and-privacy.
[5] Scigliano, supra note 2.
[6] Jenia I. Turner, Remote Criminal Justice, 53 Tex. Tech L. Rev. 197, 198 (2021).
[7] Terry A. Mueller, Remote Jury Selection & Keeping the Doors of Justice Open, 109 Ill. B.J. at 28 (2021).
[8] Id.
[9] Id.
[10] See Sixth Amendment, Constitution Annotated, https://constitution.congress.gov/constitution/amendment-6/ (last visited Oct. 4, 2021) (The 6th Amendment includes guaranteeing criminal defendants the right to a public, speedy trial) ; see also Seventh Amendment, Constitution Annotated, https://constitution.congress.gov/constitution/amendment-7/ (last visited Oct. 4, 2021) (The 7th Amendment guarantees the right to a jury trial to criminal defendants and certain civil cases).
[11] Id.
[12] Mia Armstrong, Justice, Livestreamed, Slate, Aug. 14, 2020
https://slate.com/technology/2020/08/zoom-courts-livestream-youtube.html.
[13] Karp, supra note 4.
[14] Id.
[15] Sixth Amendment, supra note 10.
[16] Turner, supra note 6, at 199.
[17] See Kelsie Smith & Dan Simon, A California Doctor Performed Surgery During a Zoom Court Appearance, CNN (March 1, 2021), https://www.cnn.com/2021/03/01/us/california-doctor-surgery-zoom-court/index.html#:~:text=Scott%20Green%2C%20a%20plastic%20surgeon,a%20mask%20and%20surgical%20cap.&text=But%20after%20he%20confirmed%20he,court%20commissioner%2C%20rescheduled%20the%20trial. (A surgeon attempted to go forward with his traffic violation trial while operating on a patient).
[18] Karp, supra note 4.
[19] Id.
[20] Id.
[21] Shannon Bond, A Must for Millions, Zoom Has a Dark Side – And an FBI Warning, WUWM (Apr. 3, 2020), https://www.wuwm.com/health-science/2020-04-03/a-must-for-millions-zoom-has-a-dark-side-and-an-fbi-warning#stream/0.
[22] Id.
[23] Karp, supra note 4.
[24] Division 9 – DeKalb Superior Court, Unindicted Bond Hearing, YouTube (Dec. 30. 2020), https://www.youtube.com/watch?v=mSORA6x6mcc&t=10650s (providing an example of a very dated bond hearing video involving juveniles that is still available online).
[25] Karp, supra note4.
[26] Turner, supra note 6,at 199.
[27] Division 9 – DeKalb Superior Court, supra note 24.
[28] Debra Cassens Weiss, Lawyer Held in Contempt for Recording Defendant’s Mouth Being Taped Shut on Judge’s Orders, ABA (July 29, 2019), https://www.abajournal.com/news/article/lawyer-held-in-contempt-for-recording-defendants-mouth-being-taped-shut-on-judges-orders (A Louisiana Public Defender was held in contempt for taking out his cell phone and recording his client in court).
[29] Courtroom Livestream, State Court of Illinois, Circuit Court of Cook County, https://www.cookcountycourt.org/HOME/LiveStream (last visited Sep. 11, 2021).
[30] See Courtroom Live Streaming, The Superior Court of California, County of Orange, https://www.occourts.org/media-relations/LiveStream.html (last visited Sep. 11, 2021); see also Live Stream for Fulton County Superior Court Judges and Judicial Officers, Superior Court of Fulton County, https://www.fultoncourt.org/judges/virtualhearings.php (last visited Sep. 11, 2021).
[31] Karp, supra note 4.
[32] Id.
[33] Id.
[34] Armstrong, supra note 12.
[35] LaToya Dennis, YouTube Court Streaming Leads to Questions About Privacy, WUWM (July 10, 2020),
https://www.wuwm.com/regional/2020-07-10/youtube-court-streaming-leads-to-questions-about-privacy.
[36] Karp, supra note 4.
[37] Courtroom Livestream, supra note 29.
[38] Stacey K. Hydrick – Court Calendars, Superior Court DeKalb County, Georgia, https://www.dekalbsuperiorcourt.com/judges/stacey-k-hydrick/stacey-k-hydrick-calendars/ (last visited Oct. 14, 2021).
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