Vol. 37, Number 4—April 2005

Wireless Devices in Federal Courts

Federal judges and court officials are scratching their heads over the array of wireless communication devices, the personal data assistants, cell phones, BlackBerrys, and wireless laptop computers. Not over how to use them, but what to do with them when they appear at the courthouse door.

Until recently, wireless communication devices weren't a problem because so few people had them. Today, however, industry statistics say 180 million Americans are wireless subscribers. That's more than 60 percent of the U.S. population. And at some point, some member of that wireless-using public will visit, file a case, serve on a jury, or defend a client in a federal courthouse. That's a problem in courthouses where cameras and audio recording devices of any kind long have been prohibited.

"Electronic devices are so common. Attorneys use their laptop computers to present their cases on electronic evidence display systems, and citizens called for jury duty use cell phones to keep track of their lives," said Chief Judge Lungstrum, chair of the Judicial Conference Committee on Court Administration and Case Management. "But courts are concerned about how they may endanger security, disrupt proceedings, or illicitly broadcast or tape proceedings."

The concerns are real. Cell phones with digital cameras can be used to skirt the ban on cameras in courtrooms, transmitting pictures and audio of jurors and witnesses. They can be disruptive when they go off during proceedings. Use of cell phones on standby status may interfere with court digital tape recording systems. Jurors might use laptop computers with Internet access to conduct research and the click-clack of laptop computer keyboards also can be distracting during court proceedings.

Federal courts, sometimes in the same judicial district, have taken differing policy approaches to wireless communication devices. Some ban them from the courthouse, while others allow them in with certain restrictions on usage. Some ban the general public from bringing in devices, but make exceptions for attorneys, jurors, and others. Some courts require cell phones to be turned off, while others ask they be placed in the vibrate mode, and still others require them to be stored with the court security officers. Strong views supporting all these policies exist. So it was no surprise when judges and court security personnel looked for official guidance from the Judicial Conference.

Rule 53 of the Federal Rules of Criminal Procedure prohibits the taking of pictures or broadcasting of criminal proceedings from the courtroom. 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. But there is no Judicial Conference policy specifically on personal wireless communication devices.

In the absence of Judicial Conference policy, the Committee on Court Administration and Case Management, the Committee on Information Technology, and the Administrative Office's Technology and Facilities Advisory Council were asked for their recommendations.

"We all came to the same conclusion," said Lungstrum. "Because of the varying views among judges and court security officers, and the differences in buildings, security procedures and technological sophistication among courts, no one-size-fits-all decision is possible at this time. Instead, we will give the courts the information that will help them develop their own informed policies."

Following that decision, last month chief judges of all federal circuit and district courts received detailed information on the security risks associated with allowing the entry of wireless devices, the considerations favoring both the entry and restriction of devices, and steps a court might take toward adopting a court policy.

According to Lungstrum, courts are encouraged to strike a balance
between potential negatives and the real inconvenience a ban on wireless devices causes members of the public while they're in the courthouse.

Some courts already have adopted local rules on the entry of wireless devices, while others are taking a more informal route by instituting policies. The Committees urged courts to work closely with their district U.S. Marshals and the judicial security inspector responsible for courthouse security in developing a policy regarding portable communication devices in courthouses.

"But in our view," Lungstrum said, "court security committees are well suited to this task and should take the lead in local policy development."