Ride the Lightning

Zoom Courts Have Thorny Privacy and Due Process Issues

July 28, 2020

Yes, they are not all Zoom Courts. But the moniker has stuck!

On July 23, Bob Ambrogi had a post in his LawSites blog that raised some serious concerns – concerns which we have heard voiced by both lawyers and judges.

We have now become accustomed to remote hearings, even trials conducting via videoconferencing and teleconferencing.

A report from the Surveillance Technology Oversight Project in New York City has been written by the project's executive director Albert Fox Cahn, an attorney, and Melissa Giddings, legal fellow at the project. In essence, the report says it is incumbent on courts and the legal community to work to ensure fairness for all parties and the integrity of the process when courts go online.

"Remote hearings and trials have not been seamless proceedings, and this nationwide experiment in virtual justice has the potential to cause significant harm to perceived and actual fairness, as well as to individual rights to privacy, in the course of determining best practices," the report says.

An immediate concern is the loss of "practical obscurity" — even though court hearings have traditionally been public, putting them online is a major change. It creates the possibility for anyone to record and rebroadcast testimony and photograph evidence, potentially violating party and witness privacy rights. "With any number of participants, a virtual court may struggle to determine if someone is making an unauthorized recording, let alone identify whom and impose proper sanctions."

There are also cybersecurity concerns involving the maintenance of the recorded proceedings, including where those recordings will be stored, whether and how they will be encrypted, and who will have and control access.

Another issue in the report is protecting the privacy of communications between lawyers and their clients. Courts currently are using breakout or sidebar rooms (a feature on Zoom and other platforms), direct messaging, or separate audio lines for in-trial communications. But each raises questions of how they are secured and whether they are recorded.

"All of these privacy and security risks, if known to the counsel or to the client, could influence the candor needed in these interactions," the report says. "But perhaps worse is an alternative scenario in which counsel and client communicate under a false belief that their communications are not at risk of interception or recording."

While that is certainly true, we see a lot more user error than anything else impacting the use of these tools.

The report cites a number of other online court concerns, including:

• The need for remote identity verification by parties or witnesses and the potential for fraud through such means as the use of video manipulation software and deepfake technology.
• The secure introduction, authenticated, storage and transmission of evidence.
• Mistakes caused by participants' unfamiliarity with technology or malfunctions by the technology itself.

And is there a digital divide impacting internet access and skills among the poor, the elderly and minorities? A low-quality internet connection or outdated hardware could prejudice a party in multiple ways. Poor technological literacy could affect not only procedural efficacy, but also the perception of fairness in a virtual court.

The report cites the U.S. immigration courts, which have used videoconferencing for decades. Studies there have found that nearly 45% of these hearings suffered from frozen images, transmission delays, or poor sound quality, which was not only an inconvenience, but which resulted in the immigrant appearing less truthful.

"Virtual hearings inevitably skew the perceptions and behavior of the involved parties by either removing or over-emphasizing non-verbal cues, failing to properly simulate normal eye contact, or exaggerating features," the report says. "This can obstruct the fact-finding process and prevent accurate assessments [of] credibility and demeanor based on common in-person experiences."

With respect to due process, the report says that video testimony is less effective than in-person testimony at conveying crucial information, and that can mean that a party is not given a meaningful chance to be heard.

"Remote appearances diminish the court's ability to assess matters such as credibility, competence, understanding, physical and psychological well-being, and voluntariness of any waivers of rights that the defendant may be called upon to make," the report says. "Any combination of these determinations raises serious procedural due process concerns."

Does physical separation impair the effectiveness of counsel? The report argues, "When an attorney and their client are physically separated during a hearing, the defendant cannot discretely communicate with or pass notes to counsel, which represents an infringement of the Sixth Amendment right to counsel."

The numerous logistical and technical difficulties associated with online hearings in general and attorney-client communications in particular could result in defendants failing to fully understand their rights and being more likely to waive those rights. The report cites an Illinois study that found that felony defendants appearing virtually for bail hearings saw a 51% increase in average bond amount.

The authors of the report recommend some best practices, including:

• Courts should clearly communicate what technologies they use and how individuals' personal information will be impacted.
• Courts must go beyond conventional terms of service, ensuring that every person whose privacy is impacted by virtual courts can provide truly informed consent.
• Courts should be especially sensitive to the confidentiality of litigants and evidence, such as conversations protected by the attorney-client privilege and evidence subject to a protective order.
• Independent government watchdogs should be established to conduct routine and impartial security audits of court technology.
• Courts should standardize across jurisdictions on preserving, securing and storing data, particularly official court records.
• Attorneys should assess potential privilege issues triggered by remote proceedings.
• A national internet infrastructure should be established to support basic and meaningful access to virtual courts.
• Public access to courts must be maintained in a way that is meaningful.

"Virtual court cannot provide the same experience or non-verbal information as an in-person hearing," the report concludes. "Any provision of remote access must take into account privacy, fairness, and due process concerns as this technology is introduced."

The full report may be downloaded here.

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225|Fairfax, VA 22030
Email: Phone: 703-359-0700
Digital Forensics/Cybersecurity/Information Technology
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