By Mauricio Duarte.
The COVID-19 pandemic has led to an unprecedented increase in virtual business meetings and home-working. The legal industry is no exception. Virtual hearings and remote courts have been implemented on all five continents. We have seen efforts worldwide, including Peru, Argentina, Guatemala, Colombia, England, Australia, the United States, China, Dubai, and many others. You can keep track of all the efforts in Remote Courts Worldwide [1], a website designed to help the global legal community share their virtual court experiences.
Courts worldwide have recognized that they have the responsibility to ensure access to justice with the implementation of virtual courts. Even if virtual courts are the right step to promote access to justice, they are not enough. Virtual courts have challenges that need to be solved.
CHALLENGES RELATED TO VIRTUAL COURTS.
1.Internet access.
We have seen a reaction from courts that want to implement a robust I.T. infrastructure to aid judicial proceedings. Most virtual courts rely heavily on web apps such as Zoom, WebEx, Microsoft Teams, or Google Meets. Besides, it would be best if you had a stable Internet connection to access a virtual hearing. However, statistics suggest that until 2017, nearly 41% of the population does not have any access to the Internet. [2] Similarly, Internet connections around the world are unevenly distributed. Let us make a distinction. WiFi is not the same as mobile data services. WiFi is another frequency of radio we use to connect devices wirelessly. Your laptop or smartphone connects (over WiFi) to a wireless router—like the one you access at your home or your favorite Starbucks- to use the Internet. When you use mobile data services, you do not need a router or a WiFi connection. You can access information, applications, email, websites, and more on your phone or tablet using as you are in the coverage area.
Regardless of the distinction, according to the U.N. report titled Achieving universal and affordable Internet in least developed countries: "Mobile broadband accounted for 90 percent of all Internet subscriptions in 2015 and a 3G or 4G network covered around 80 percent of the population(…)".Hence, Internet users predominantly use mobile networks and increasingly 4G and 5G mobile broadband. However, some underdeveloped countries or regions have not implemented 3G broadband successfully. Let us remember that 3G was launched in 2008, with the deployment of the first 3G network.
Virtual courts without the Internet is unimaginable. Some might argue that the Internet is a core pillar of the modern information society, that is, access to the world wide web should be a human right. [3] For instance, in July 2016, the U.N. issued a declaration emphasizing the importance of: "applying a comprehensive human rights-based approach when providing and expanding access to the Internet and for the Internet to be open, accessible and nurtured". However, a gap remains between those who have access to the Internet and those who do not.
Therefore, the use of virtual courts could represent a challenge to many users of the judicial system. A lack of access to the Internet is a barrier to justice when relying heavily and exclusively on virtual courts. Thus, courts should not think that virtual courts' implementation is the panacea for access to justice.
2. Digital literacy.
Digital literacy looks at the capacity to use the Internet and the tools associated with it. Digital literacy does not refer exclusively to creating an Excel spreadsheet-a task with which many struggle. Digital literacy should be understood broadly as the ability to carry out basic tasks on the Internet, such as reading the information, sending an email, or understanding how to connect and use Zoom for a virtual hearing.
Imagine an uneventful court appearance on Zoom. However, experience has taught me there is rarely an uneventful Zoom meeting. Even if Zoom is not the only platform used by the courts, according to a survey done by Norton Rose Fulbright, it seems to be one of the most prevalent. [4]
Lawyers with a background from their virtual happy hour, the usual participant who does not "mute" himself, or a participant who frames the camera to focus his forehead. We have all witnessed a similar situation. Imagine the Honorable Dennis Bailey, a judge in Florida, that wrote a public letter calling on lawyers to dress more appropriately after seeing a male lawyer show up shirtless. [5] As judge Bailey stated: “ And putting on a beach cover-up won't cover up you're poolside in a bathing suit. So, please, if you don't mind, let's treat court hearings as court hearings, whether Zooming or not.”
Digital hearings can be tricky for people who are not as comfortable using videoconferencing technology. However, let us move away from lawyers. If people with law degrees struggle in front of a virtual hearing, users with limited access to technology will struggle as well.
More than ever, attorneys, judges, and users of the judicial system need to become familiar with the technologies used for a remote hearing. However, courts will have to be transparent and provide resources to gain an adequate competency level to use a specific platform. We cannot expect that users magically become experts on a specific platform. Courts have to select adequate technology tools for virtual hearings and provide resources for the system's potential users. Participants unfamiliar with a specific platform are likely to make mistakes, such as having trouble connecting, speaking on mute, or sharing sensitive information. Such mistakes can have a determinative impact on the case.
Consequently, failure to provide resources and information could harm someone's case. For example, the Surveillance Technology Oversight Project [6] highlighted concerns like lack of privacy between attorneys and clients and bias with trials over digital platforms, when someone does not understand how to use a specific platform. For instance, if you understand how to use Zoom, you could have the ability to request breakout or sidebar rooms, direct instant messaging, or separate audio lines for in-trial communications.
The shift to virtual hearings should not represent a situation where the loss of face-to-face contact puts users at a disadvantage. Therefore, as long as there is no digital literacy for the virtual court users, it will be hard to have a successful system that genuinely promotes justice. Like Douglas Keith, counsel at the Brennan Center for Justice, said: "People may be judged not only on their clothes but also on their surroundings or the quality of their internet connections." [7] Consequently, any judicial system that wants proper access to justice should provide information and resources for their users. The lack of transparency and information could result in an adverse effect on the system.
3. Due process.
Judge Emily Miskel of the 470th District Court in Texas recently said: "The human judiciary is never going to be able to be replaced because of the ability to exercise equity and allow for modifications, notwithstanding the tools that [we] have to make our jobs easier." Technology can help us to automate the court system and make it better for everyone.
However, there are concerns about the mechanisms we can implement to guarantee a due process.
Undisputedly, there is a significant difference between audio-video and in-court dynamics. For example, it is not the same to examine a witness in a court where you can assess the witness through his testimony and their physical and emotional demeanor. There are growing concerns that evidence displayed through video conferencing may distort the content. In other words, digital infrastructure can adversely affect one of the parties. [8]
If virtual courts are not implemented correctly, there could be a decreased understanding by parties of their rights, and remote attorneys may struggle to advise their clients of some rights effectively. Therefore, there may be adverse impacts on the attorney-client relationship. Also, courts have to make an honest assessment of any virtual judicial system. A virtual hearing does not provide the same experience or nonverbal information as an in-person hearing. [9] What happens if a party loses connection? Does testimony with echo and interference over a microphone is just as persuasive? How can we make sure that a witness is not having help from an attorney or a third party? Can a court compel a witness to appear electronically at a remote hearing, even if that witness is within proximity to the court?
Virtual courts have to ensure fairness for all parties and the process's integrity when courts go online. A remote hearing should not create an advantage for a firm that can pay for good lighting and stable internet connections. Virtual courts that understand how to preserve due process will provide a step forward in ensuring access to justice.
4. Cybersecurity and privacy.
While virtual hearings can be useful, authorities have to implement adequate safeguards to ensure that the proceedings are protected.
For example, in a recent incident, a lawsuit challenging Florida's mask order took an uncomfortable turn. While the attorneys prepared to present their oral pleadings, hackers infiltrated them with bursts of music and offensive sexual depictions. [10] In other words, the hearing was subject to a Zoombobing. It has been reported on different occasions the cybersecurity issues with Zoom. Besides, Zoom has not helped its case by misrepresenting its product's level of security and privacy practices. [11]
Any virtual court has to provide adequate cybersecurity measures, both in terms of who has access and how data is stored; and how confidential information will be administered. For example, if private communications between counsel and their clients occur in a specific platform, it is imperative to use a platform that offers robust cybersecurity. In addition, virtual courts have to provide platforms that make it easy to protect the presented evidence.
With cybersecurity and privacy, there are many questions we have to ask. For example, if all virtual hearings are open to the public for remote viewing, there is potential for recording shared evidence by anyone with internet access. Are there adequate mechanisms to prevent this? How courts store evidence and data from virtual courts?
In a more complex scenario, how can we prevent 'deepfake' technology that enables someone to claim and visually simulate a fraudulent identity? [12] Questions like these have to be answered before courts rely heavily or exclusively on virtual courts. Any virtual court must consider privacy, fairness, and cybersecurity concerns as technology become more complex. Only by adopting adequate cybersecurity protocols, virtual courts will be able to enhance access to justice successfully.
THE FUTURE IS BRIGHT
Do not fear; I am a firm believer in virtual courts. However, we have to look carefully at how these procedures work in practice and improve our approach. Many issues need to be solved before relying exclusively on virtual courts. Recently, the Honorable Judge Roy Ferguson of the 394th Judicial District Court in Texas said: "you can't blame Zoom because we're not driving their bottom line — what we need is 'Zoom Virtual Courtroom' instead of 'Zoom Virtual Meetings.'" In other words, we have to be creative and innovative to find better solutions that are adequate for the legal industry.
Zoom, WebEx, Google Meets, or Microsoft Teams were not created to held virtual courts. I think it would be unfortunate if the courts become too reliant on remote proceedings using mainstream platforms. When COVID-19 ends, courts should not use mainstream platforms only because they are more cost-effective solutions. Courts have to consider the potential risks of using traditional tools.
Therefore, courts should implement virtual courts that come with a focus on a longer-term shift towards remote proceedings. Virtual courts could become the 'new reality.' However, this should not be an excuse to disregard severe concerns with the current solutions that came out of this crisis.
As Richard Susskind expressed in his article "The Future of the Courts", we have to: "radically redesign our court systems and put in place a new configuration of people, processes, technologies, and physical spaces that is user-centered, technology-enabled, sustainable, accessible, and better than what we have today." I think we can all agree on this premise.
My prediction for the future of virtual hearings is positive and optimistic. Virtual hearings can genuinely expand the capabilities of the judicial system. However, looking forward, we have to move above and beyond what we have today. We have to learn from this crisis and create better solutions that genuinely improve access to justice. It will be up to judges, lawyers, and users to create better alternatives that ensure access to justice.
Notes
[1] Remote Courts. (n.d.). Remote Courts Worldwide. Retrieved August 10, 2020, from https://remotecourts.org/
[2] Digital users worldwide 2020. (n.d.). Statista. Retrieved August 29, 2020, from
[3] University of Birmingham. (2019, November 11). Free Internet access should be a basic human right: Study. ScienceDaily. Retrieved August 20, 2020 from www.sciencedaily.com/releases/2019/11/191111084929.htm
[4] Norton Rose Fulbright. (2020, April). COVID-19 and the global approach to further court proceedings, hearings. https://www.nortonrosefulbright.com/en-br/knowledge/publications/bbfeb594/covid-19-and-the-global-approach-to-further-court-proceedings-hearings
[5] WBA. (n.d.). DURING THE COVID-19 PANDEMIC A Letter from the Honorable Dennis Bailey. Weston Bar Association. Retrieved August 22, 2020, from https://www.westonbar.org/so/61N5VoOJe?fbclid=IwAR3gBGUaUfpC8qs0612nMrw-lSDgZkDFiOiCcKGXBjd3SDS8PisCrslHN6c#/main
[6] Surveillance Technology Oversight Project. (2020, July 23). Virtual Justice. S.T.O.P. - Surveillance Technology Oversight Project. https://www.stopspying.org/virtual-justice [7] Fortin, J. (2020, April 15). When Court Moves Online, Do Dress Codes Still Matter? Https://Www.Nytimes.Com/#publisher. https://www.nytimes.com/2020/04/15/us/coronavirus-lawyers-court-telecommute-dress-code.html
[8]Harvard Law. (2009). Development in the Law- Access to Courts. Harvard Law Review, 122(4), 1153–1216. https://harvardlawreview.org/2009/05/developments-in-the-law-ae-access-to-courts/[9] Lartey, J. (2020, April 13). As Coronavirus Sends Judges Online, Court Watchers Left Out. The Marshall Project. https://www.themarshallproject.org/2020/04/13/the-judge-will-see-you-on-zoom-but-the-public-is-mostly-left-out.
[10] In Pictures: 5 Pitfalls of Using Zoom to Litigate. (2020, August 28). Daily Business Review. https://www.law.com/dailybusinessreview/2020/08/28/in-pictures-5-pitfalls-of-using-zoom-to-litigate/?fbclid=IwAR1nXE5mBxjbmBloqctAAjkfm4TmrpbzFhsqF8hC4Df9NhCrXSLFaApBhG0
[11] Statt, N. (2020, June 17). Zoom says free users will get end-to-end encryption after all. The Verge. https://www.theverge.com/2020/6/17/21294355/zoom-security-end-to-end-encryptoin-beta-release-july-2020-new-feature
[12] Cole, S. (2020, April 3). This Open-Source Program Deepfakes You During Zoom Meetings, in Real Time. Vice. https://www.vice.com/en_us/article/g5xagy/this-open-source-program-deepfakes-you-during-zoom-meetings-in-realtime
About the Author
Mauricio Duarte Mauricio Duarte is a Lawyer from Universidad Francisco Marroquín (Guatemala) with an LL.M. from St. Thomas University (Minnesota).
Mauricio is a Justice Entrepreneur with A2J Tech, a company in Denver (Colorado) that builds legal tech solutions to improve access to justice. Mauricio serves as an Of Counsel Partner of Legal Plus; a law firm focused on advising entrepreneurs and technology companies. In addition, Mauricio has served as a Kleros Fellow of Justice and is the Host of the Legal Hackers Podcast (In Spanish).
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