If they don't have cameras – Let them send IM's…

 

At the end of a highly publicized trial in the state of California, Scott Peterson was convicted of the murder of his pregnant wife and the unborn fetus she was carrying. Even though cameras were not permitted in the Courtroom, the television station KCRA-TV managed to provide live coverage of the reading of the jury's decision to sentence Peterson to death….This was done through instant messages (IM) which a journalist who sat in the Courtroom sent from her laptop computer, while using the wireless internet connection (wi-fi) which was available there. KCRA believes that there was nothing wrong with these actions of the journalist but this determination is not without doubt.

 

Court Unplugged

 

A growing number of Courts in the US are connected today to a network which enables a wireless connection to the internet. This is a connection to the internet using a wireless network card without the need for a wire connection. This infrastructure enables both journalists and lawyers appearing in the courtroom and awaiting hearings to maintain a continuous connection with the world outside the courtroom – through email, surfing the internet as well as through Instant Message programs.

 

The legal community expresses a great satisfaction with this development. John Carriker, a district attorney in North Carolina, in which such wireless connection from court exists and where it was decided to expand the wireless network to all the courts in the State, describe the experience of Wi-Fi in Court in a report on Wireless internet connection published by the North Carolina Courts Administration. Carriker indicates that a wireless connection in court enables him to conduct legal research, to locate information with regard to potential jurors, to check references which the counter party submits, to check criminal records and to check email – and all from the Courtroom. Thus, it is possible, in effect, to bring the entire office to the Courtroom. This, Carriker believes, grants a great advantage and facilitates the search for truth.

 

Security Concerns

 

Wireless surfing is inherently unsafe. Being carried on radio frequency, this connection is exposed to invasions by hackers and infringement on privacy. The importance of maintaining a safe connection increases in light of the fact that the information transferred is not only information belonging to the lawyers appearing in Court, but rather because frequently this is also the client's information.

 

The US Courts discuss the matter of information security and the take various technological means to minimize the danger.

 

The Bankruptcy courts of the Western District of Texas, for example, deal with the problem of the security using several aggregate means:

(1)       an orderly listing of the participants and their information, including the documentation of an individual identification of their personal computers;  (MAC Address)

(2)       Securing the web connection by using a "protected Wi-Fi access"

(3)       Protection of access by a password which changes on a daily basis and is published in the courtroom only, so that it is accessible to lawyers appearing in court on the same day.

(4)       Hiding the wireless network (SSID)

(5)       Using a firewall

 

Let the Surfer Beware

 

In addition, registration for the service in conditioned upon reading a Disclaimer, published by the Court which states that wireless web connection is conducted over radio frequency and is inherently unsafe. In doing so the Court waives its liability for any possible infringement of privacy or of the security of the users' information and recommends that the lawyers using the service take every reasonable security precaution in order to protect the data found in their computers from a breach.

 

The Courts of North Carolina use the said security methods as well as additional technological methods.

 

In the Florida Courts, usage of the wireless internet services is conditioned upon the existence of a valid bar membership in the State of Florida. This registration is for one computer and one person only and may not be transferred. The registration must be renewed every year and if there is any change in the user's details in the course of a given year, the lawyer must update the court. These instructions by the Court also include a disclaimer waiving the Court's liability and that of its employees and impose upon the lawyers using the service the obligation to secure the information in their computers when using the internet, as required by law.

 

Netiquette

 

Dan Weiser, KCAR news editor, indicated in an interview granted to CNET writer Ben Charny on December 13, 2004, that the journalist who broadcast Mr. Peterson's sentence from the Court did nothing wrong. However, as aforesaid, this statement is not free of doubt. The truth is, says Michael Overing, a lecturer on internet law in the University of Southern California, who was also quoted in the said CNET article, that the Courts have not yet formulated an appropriate policy with regard to wireless networks.

 

The US Department of Justice set guidelines with regard to the usage of wireless technology, inter alia in the Immigration Courts. In this Court, it was decided that there is a complete prohibition of the use of any electronic device for recording the proceedings. Whereas it is permitted to bring into the courtroom other electronic devices, such as cellular telephones, Personal Digital Assistants and mobile computers, the use of such equipment while Court is in session is permissible only if the voice is muted and the actions performed do not disrupt the normal course of the discussion.

 

The Florida Courts issued a guiding document stating rules for internet access from the Courtroom. The bright-line rule is that the Judge decides the rules applicable to internet access from his own courtroom and may, at his discretion, limit such access or prohibit it altogether. In this State internet access in the Courtroom is permitted to lawyers only, and only from the counsel table in the courtroom – and nowhere else. Here too, the usage of any recording device is prohibited and the voice of the computers must be muted. In addition, it is explicitly stated that the proceedings in the Courtroom will not be stopped and will not be disrupted due to technical problems in the lawyer's computers.

 

Growing Pains

 

In many US Courtrooms, lawyers are now arguing before judges, while, a short VPN (Virtual Private Network) distance away are all their assistants and office staff. The provision of a wireless connection to the internet in Court improves the lawyers' experience of the appearance in the courtroom. However, this development also raises many questions with regard to the laying out of the wireless "hot-spots", with regard to technical support, with regard to information security and with regard to the rules of appropriate behavior in the courtroom. These questions require adjustment both of the court system and of the lawyers.

 

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* Wi-Fi a play on the term "hi-fi" which was used to describe the high quality in the sound of certain audio devices, is short for the term "wireless fidelity". This is an overall term for products in the IEEE 802.11 standard, enabling wireless surfing of the internet.

 

** Odia Kagan coordinates the IT and Internet law practice in Shavit Bar-On Nov Yagur Law Offices and has been admitted to practice law in Israel, New York, England & Wales and New South Wales, Australia. Okagan@sbilaw.com

 

*** This article was first published (in Hebrew) in the NFC website.