Nonprofit Sounds Justice Concerns With Remote Trials

By Cara Salvatore
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Law360 (July 24, 2020, 10:21 PM EDT) -- A cybersecurity watchdog group said Thursday that online trials carry a host of justice and privacy concerns requiring attention as the proceedings proliferate across the nation's courts, spurred by the coronavirus pandemic.

The Surveillance Technology Oversight Project, or STOP, based in New York, said in a report that there are crucial flaws in the practice of online court proceedings, which happen via platforms including Zoom, YouTube, Cisco Webex, GoToMeeting, Skype and Courtcall.

Numerous court jurisdictions have adopted online hearings and even trials as a way of avoiding a complete freeze of court proceedings in a historic moment that makes in-person proceedings potentially life-threatening.

But courts must proceed with their eyes open to an array of issues with the practice that threaten the provision of equal justice, according to the report, written by Albert Fox Cahn and Melissa Giddings.

"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," the group said. "Courts must account for the digital divide as well as security vulnerabilities, potential fraud, and the risk of manipulated audio/video."

Attendees may be able to record online proceedings without courts' knowledge, the group said. Sidebars with judges may be difficult to effectively keep private from other users. The growing sophistication of "deepfake" audio and video simulations may open a door to impersonations.

"Not only can successful deepfakes find their way into evidence, potentially condemning the innocent or exonerating the guilty, but the mere existence of deepfakes allows litigants and their attorneys to cast doubt on video or audio that is legitimate," the group said.

Federal courts are tiptoeing into the realm of full-blown online jury trials. The Southern District of New York just finished an IP bench trial. The Eastern District of Virginia conducted a major patent bench trial online in June. The Eastern District of Michigan finished its first online bench trial this week, a court spokesman told Law360. One Texas state court successfully conducted a nonbinding Zoom jury trial, and Texas state courts are conducting Zoom bench trials daily now. Florida recently conducted a jury selection via Zoom. In many jurisdictions, the future is already here.

Courts had once been hopeful that the pause created by the pandemic would be short, and judges had even discussed reopening soon. But as the nation has sailed into a second, higher coronavirus peak, courts remain up against a wall and facing a tremendous case backlog.

As they grapple with solutions, courts must be mindful that litigants who are already starting out at a disadvantage face even greater risks with online proceedings, according to STOP.

For the many litigants who don't speak the King's English, and have dialects or accents that are considered nonstandard, "virtual transmission of their speech creates a greater likelihood of errors or misinterpretation in the court record, either on the part of court reporters or AI transcription technology," a problem that "can have far-reaching and harmful consequences for a defendant," the report said.

Further, millions of people across the country still do not have high-speed internet. A poor connection can make a big difference in outcomes in encounters with the judicial system, the group said, as studies have suggested that a jittery or halting connection impacts perceptions of honesty.

Judges are affected as well, the report said. A Harvard Law Review article found in 2009 that "judges were likely to feel more emotionally distant from and apathetic to an immigrant on a television screen," the report quoted.

"One study of immigration removal hearings conducted by video conference found that nearly 45% of these hearings suffered from image freezing, transmission delays, or poor sound quality, which affected the transmission and resulted in "the immigrant appear[ing] less truthful," it said.

--Additional reporting by Dorothy Atkins, Daniel Siegal and Anne Cullen. Editing by Bruce Goldman.

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