April 2011

Wireless Device Access Guidelines Strike Balance

The American public loves the convenience of their wireless communication devices—PDAs and laptops, smart phones and earpiece devices, among others. It’s estimated there are 285 million cell phone users in the United States.

However, the same devices that provide convenience in communications may raise security concerns in federal courts and possibly disrupt proceedings. Courts have responded with a variety of access policies.

To help strike the right balance between security concerns and convenience, the Judicial Conference Committee on Court Administration and Case Management, in consultation with the Information Technology Committee and the Judicial Security Committee, has issued revised guidance for courts to consider that updates how new technologies could be used and what this may mean for courts.

Rule 53 of the Federal Rules of Criminal Procedure bars the taking of photographs in the courtroom or the broadcasting of criminal proceedings. Judicial Conference policy states that courtroom proceedings in civil and criminal cases in the district courts may not be broadcast, televised, recorded, or photographed for the purpose of public dissemination. Specific exceptions are made for ceremonial proceedings. Judicial Conference policy also allows a judge to use audio-visual equipment, “for other purposes of judicial administration, one example of which would be the closedcircuit television linking the courtroom with another location.” In addition, a Conference-approved video pilot will begin soon in a limited number of district courts. (See story in March Third Branch.)

These policies were intended to address issues relating to coverage of court proceedings by the press. However, the rules and policies apply equally to private individuals.

Wireless devices can help or hinder, depending upon the time, the place, and the user. An individual with a smartphone might broadcast proceedings or photos from a courtroom, contravening Judicial Conference policy; while an attorney might need a cellphone to communicate with clients or witnesses in a case. It would be improper for a juror to access the Internet to research issues or court files during the trial. Yet, with the same technology, a court reporter can move around the courtroom and attend a sidebar without trailing wires, or an attorney can present evidence electronically in a case. Instant messaging helps judges communicate with courtroom deputies and pretrial services and probation officers, but a juror may not use it to post his or her reactions to evidence or testimony. Obviously, some accommodations for wireless devices need to be made, while restrictions are favored in other circumstances.

In the revised guidelines, courts may consider the following when establishing a policy on the use of wireless communication devices:

• The devices to which the policy applies: Are laptops exempt, but not smart PDAs? Does it apply to all cell phones, or just those with photo or recording capabilities?
• To whom the policy will apply: Should some groups, such as court employees, law enforcement, members of the bar, and contract employees who have undergone background checks be allowed greater use of electronic devices?
  If members of the press are allowed devices, it may be necessary for the court to clearly define how the policy applies to credentialed press and bloggers who may or may not be credentialed.
• When and where wireless devices may be used: Should wireless devices be allowed in a media room where there is an audio-feed, or in a separate courtroom with a live feed, during court sessions or only during recess? Should a court also require that cellular devices be off at all times or silent on floors with courtrooms? Do the same policies apply in every division and courthouse in a district or circuit?
• The effect any policy will have on the public’s access to the courts: How would curtailed access to wireless communications devices affect jurors who may need to communicate with family and workplace; affect litigants or defendants; and affect other tenants in the building?
• The security risks: Is there a security risk when most devices can be operated remotely, may be made of materials that evade scanning, and, in some cases, can be converted for use as weapons? The size of some devices coupled with their ability to record and photograph may also be a security consideration.
• The impact of banning wireless devices on the workload of court security officers: Will additional screening for devices delay entry into buildings? Where will wireless devices be stored if they are banned from the courthouse? What are the options for the public, if no storage is provided?

Finally, courts are urged to adopt a policy that can be applied on a courthouse- by-courthouse basis because of the unique needs and circumstances of each location. Thus no uniform national policy is recommended. When the court adopts a policy on wireless devices, the guidelines encourage ample notice, including signs outside the courthouse and at security posts, on the court’s website and in notices to attorneys and jurors. Regardless of the policy, courts should work closely with the district U.S. Marshal and others responsible for courthouse security.