The current COVID-19 pandemic has forced us to move many of our daily activities online. Trials have been no exception to this transformation, relying on platforms such as Zoom to give people their day in court (to be clear, Zoom is not the only platform to have been used by the courts, but, according to a survey done by Norton Rose Fulbright, it seems to be one of the most prevalent). As demonstrated by some of the cases that have gone forward in this fashion, the use of videoconferencing in court proceedings is not without sizeable risks. In a recent column, Amy Salyzyn examined some possible threats posed by this system to both privacy and case outcomes. Our post builds on her observations by discussing some additional legal values that ought to be considered when it comes to ‘virtual trials’ (a term that we use loosely since most trials that were conducted through Zoom or other platforms over the past few weeks still heavily relied on paper documents).
As Giampiero Lupo highlights, in addition to privacy, there are other principles that must be taken into account when evaluating an e-Justice framework, namely (1) independence, impartiality and accountability, as well as (2) equal access, (3) transparency, and (4) legal validity. We will address each of these aspects in turn, effectively demonstrating how the current approach to ‘virtual trials’ is not well-adapted to upholding these crucial tenets. Our aim in this post is not to criticize the inventive measures court systems worldwide have adopted to ensure that their respective legal systems should not be stalled as a result of our present circumstances; we truly applaud their efforts in this respect. Our intention is rather to stress that while Zoom trials might perhaps be fitting in the context of a universal crisis, they should not be the standard going forward.
Independence, Impartiality and Accountability
Judicial independence and impartiality rest on courts and judges being free of any external pressures that could influence their decisions. One aspect that plays a large part in ensuring that these ideals are upheld relies on judges maintaining control over how trials are conducted. Their ability to do so, however, is limited when ‘virtual trials’ are outsourced to third-party videoconferencing platforms. In these cases, several factors could affect the proceedings – none of which judges have the power to control. These include, for example, participants’ dependable Internet connection and the platform’s capacity to sustain high traffic without freezing, among a number of other elements that we will discuss in more detail below.
Judges’ lack of control in this respect also makes it difficult for them to remain accountable for their virtual courtrooms’ functioning, such that they cannot ensure that the mechanisms and channels available in fact comply with procedural norms. Zoom, for instance, initially contained major security flaws. Though most of these issues have since been addressed, security measures remain a source of concern. For example, researchers claim that – notwithstanding Zoom’s marketing – the platform is not equipped with end-to-end encryption. Our goal here is obviously not to single out Zoom, as other videoconferencing tools have also shown to have security flaws, but simply to demonstrate that a lack of adequate protection could be problematic in the context of virtual hearings should they, for example, be subjected to interruptions caused by hackers or other malicious users.
Despite technology’s seemingly ubiquitous use in our society, not all citizens are necessarily computer literate. As we’ve stated elsewhere on this site, this shouldn’t be used as an argument against ‘virtual courtrooms’, as no process will be appropriate for 100% of the population. That being said, different levels of computer literacy must be considered and, as such, any platform being used for the purposes of ‘virtual trials’ should be designed with this very important factor in mind. The design must be sufficiently simple so that it may be accessible to as wide a range of users as possible, while also incorporating a feasible level of complexity that wouldn’t risk challenging its legal validity. In their article on the importance of accounting for design in e-Justice systems, Jane Bailey and Giampiero Lupo reference Giovan Lanzara’s work, which notes that such platforms must “achieve the right balance between a system’s maximum level of feasible simplicity and its maximum level of manageable complexity.” In effect, “systems that are simplified to a point that undermines the functionalities, value, usefulness, and legal validity of a procedure are highly unlikely to attract users […]. On the other hand, systems cannot be so complex as to be beyond the technological capacity of most users.” While we would concede that Zoom is sufficiently simple to be operated by most users, we’d argue that, since it was not designed for the courts, its use could, in certain instances, undermine the legal validity of a ‘virtual trial’. In fact, the underlying issue is much broader than Zoom or Teams. Many of the software solutions that are currently being used by courts were not designed with the legal system in mind. In numerous cases, business solutions were simply tweaked, which implies some limitations since the legal system does not operate like the business world.
Regardless of whether videoconferencing platforms are suitably designed, however, a significant portion of the population remains restricted from using them for a number of other reasons. Take, for example, the vision, hearing or speech impaired; online platforms would need to be equipped with assistive technologies to ensure that people aren’t excluded from accessing justice solely because they suffer from physical disabilities. Additionally, broadband limitations need to be considered. A report published by the Canadian Internet Registration Authority on May 8 found that “median rural download speeds were […] 3.78 Mbps, compared to 44.09 Mbps in urban Canada – a difference of 11.7 times [– and that since] the COVID-19 pandemic, median speeds have continued to fall for rural users.” Although this download speed is just enough to run Zoom, which requires at least 3 Mbps for participation in a group videoconference, it is likely not high enough to prevent the audio from being delayed and the video from freezing. It is therefore doubtful whether people in these communities would actually be able to enjoy a seamless experience on such a platform. In this light, rather than increasing access to justice for these individuals, ‘virtual trials’ on platforms like Zoom could be detrimental to their rights.
Any platform being used for ‘virtual trials’ must equally offer a sufficient level of transparency regarding how it functions, and which norms regulate its system. After all, as Joel Reidenberg notes, “[t]echnological capabilities and system design choices impose rules on participants,” or, to quote Lawrence Lessig, “code is law.” What we can and cannot do will effectively be dictated by the platform’s code, and this code is far from neutral. It imposes certain values and restrictions that may or may not advance the tenets of our judiciary. With neutrality being a cornerstone of democratic legal systems, however, the transparency of any platform used for these purposes is vital. We must ensure to adapt the open court principle to online environments – not just in terms of allowing the public meaningful access to hearings, but also in terms of providing them with details regarding the inner workings of the platforms that play a role in dictating how their legal rights are adjudicated.
There is something about being in a courtroom that simultaneously fills a person with both awe and a strong measure of respect for a system that has strived to maintain societal order for centuries, equipped with strict rituals that compel us to take the process seriously. That sentiment has yet to be properly replicated on Zoom. Just ask Florida justice Dennis Bailey, who was recently subjected to a male lawyer appearing shirtless and a female attorney appearing from the comfort of her own bed – still under the covers. In his public letter, Justice Bailey wrote that “putting on a beach cover-up won’t cover up you’re poolside in a bathing suit,” essentially pleading with lawyers to “treat court hearings as court hearings, whether Zooming or not.” Maintaining a certain measure of decorum is a big part of what validates the legal process.
While the behaviour of lawyers can be easily curbed through directives issued by their respective Bar Associations detailing what is expected of them in online environments, what of other formal legal rituals specifying the practices that animate courtrooms? As we’ve written previously, “[o]ver the centuries, the legal community has incorporated a series of rituals and symbols into its practices. It could even be argued that the judicial system is one of the most ritualized processes in modern society. Some of these rituals serve an obvious purpose and are often intrinsically linked to some of the pillars of our legal systems […], while others are simply the product of superstitions or dogmas from a bygone era. It is therefore imperative, before implementing technological change, that we understand which ritualistic practices are inseparable from the processes they are associated with, and which ones can and should be discarded.”
At the same time, however, some of those vital procedural rules are very much limited to the physical world and cannot be easily replicated in cyberspace. In this sense, there is an existing tension between these rules and any gradual movement towards technologically friendly trials. It is for this reason that researchers worldwide – including members of the Cyberjustice Laboratory – have endeavoured to gather the empirical evidence required to assist in the development of guidelines to this effect. As David Tait notes, “[s]uch guidelines must include technical specifications that reduce the technical failures so characteristic of the earlier generations of [court] technologies. They must also include information that will allow courts to make informed decisions about when it is appropriate to use [videoconferencing technologies] and when it is not.” Very few steps have as of yet been taken by legislators to reconcile the clear discrepancy between existing procedural rules and how they ought to be reproduced in ‘virtual trials.’
Adapting procedural rules for the purposes of ‘virtual trials’ is not, however, the only aspect that could detract from their legal validity. The design of the platforms used for such trials can also transform courtroom interactions and negatively affect parties. As David Tait points out, “[v]ideo technology […] sometimes isolates witnesses, restricts effective communication and increases stress amongst people who are already vulnerable. It can encourage disinhibited or inappropriate behavior. It may make it harder to effectively test the evidence, or assess the plausibility of the person appearing on the screen. Speakers may be unable to make eye contact; they often miss verbal or non-verbal cues and may be disoriented when the sound seems to come from a different place than the image on the screen.” While these may all be small details, they get in the way of allowing parties to successfully present their arguments and ultimately impact the equity of case outcomes.
On Zoom, for example, even the smallest of sounds will result in switching the person whose face appears on the screen. This can only be avoided if their sound is muted. However, if the Judge mutes them, they will be unable to intervene should they deem it necessary, and if they mute themselves, they possess the power to intercede even when it may not be appropriate. While in a physical courtroom these interactions can occur seamlessly, on Zoom they are characterized by a consistent flashing of different faces on the screen, which could entirely undermine the value of these exchanges. Moreover, even with up-to-date computers and a stable wireless connection, videoconferences tend to stall and the audio is often delayed, essentially contributing to the problem. These design issues are likely to call the legal validity of Zoom trials into question, and may even cause the general public to lose faith in the legal system.
The above might seem surprising coming from us, especially since we’ve spent years advocating for mobilizing technology to increase access to justice. Despite all the issues elucidated throughout this column, however, we continue to believe that technology holds much promise for the legal system. Nevertheless, we are equally of the opinion that any such changes need to be incremental and need to carefully evaluate all the elements at play.
One interesting solution that appears to achieve this feat is David Tait’s Distributed Courtroom – which is somewhat similar to the technologically enhanced hearing room that we have established at the Cyberjustice Laboratory. Rather than relying too heavily on videoconferencing platforms offered by third-party providers, this approach sets up 75-inch flat screens – which enable participants to appear almost life-like – on either side of the courtroom. These screens are angled in such a way as to allow the jury to see the accused and defence lawyer when peering left and the prosecutor and prosecution witness when peering right. The judge, who is also physically present in the room, “meanwhile [looks] to his right to see a smaller screen displaying the defence side and to the left to see the prosecution, giving the impression of eye-to-eye communication as if remote parties [are] present in the courtroom.” While the system was originally set-up for criminal trials, it can also be adapted to civil cases. Moreover, “[e]ach of the two screen configurations [include] a co-located loudspeaker to relay the audio associated with the remote participant video link. This [allows] all participants and listeners in the courtroom to localise sound to the video image of the talker, adding realism and making it easier to know who [is] speaking at any given time.”
This approach effectively allows parties to appear remotely, but in a way that avoids the issues surrounding the involvement of third-party platforms like Zoom. The judiciary retains constant control over both the video links and the audio, making it easier for the courts to ensure accountability and transparency because they possess the requisite knowledge regarding the inner workings of the technology at play. Likewise, they also have the freedom to employ more sophisticated security measures to safeguard their system rather than being forced to depend on any third-party provider. Finally, in replicating the setup of a traditional courtroom, the videoconferencing feature of a ‘virtual trial’ is less likely to negatively impact the parties. Although this system remains contingent on parties’ adequate Internet connection, each county could appoint a location outfitted with the necessary equipment that would allow its citizens to appear remotely without being hindered by their lack of access to technology.
These potential solutions are the product of at least a decade of research investigating how technology can be incorporated into the legal system while limiting adverse effects on all stakeholders involved. After years of reflection, one thing remains clear: virtual courtrooms cannot be conceived overnight. There will always be new technologies to investigate and new angles to consider. Zoom might very well be a reasonable option at the moment, in light of the limited time and resources we’ve had to adjust to this pandemic, but it cannot be the standard going forward without challenging the foundation of our legal system. Any potential long-term solution must be the product of serious contemplation to ensure that the values essential to upholding our democratic society are not undermined.