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Privacy Perspectives | Virtual justice and privacy: What does COVID-19 mean for due process? Related reading: A timely resource: Updated guide to US government data sharing



Effective March 25, New York City’s Criminal Court announced, "All parties will participate in court proceedings by videoconferencing." Due to the COVID-19 pandemic, the court news release explained that all "arraignments will be virtual, with the Judge, prosecution and defense attorney and defendant all from remote locations."

As the virus spread, courts across the country echoed this approach.  

Few would argue with the immediate necessity of such arrangements. The move to virtual court is designed to protect all involved from the spread of this crushing virus. But, what does virtual justice look like in practice? Does it provide our Constitutional rights to due process and effective assistance of counsel? Are privileged consultations possible when the defendant is incarcerated and visits by counsel are prohibited? Is it worth considering the practical implications of virtual court proceedings, for privacy and other rights, across society?

Around the globe, COVID-19 has forced us to choose between imperfect and often terrible alternatives. The justice system is no different. Courthouses are shuttered. Hearings and trials are postponed. For many, justice is delayed. But, the 6th Amendment of the Constitution guarantees those accused of a crime the right to a speedy and public trial and to the assistance of counsel. Both the 5th and the 14th amendments provide due process rights. Each is tied to an individual’s right not to be deprived of life, liberty or property. Exposure to COVID-19 clearly puts life at risk. This necessitates adjustments, a balancing of rights. In much of the country, virtual court appearances and remote client consultations are the substitutes of choice.

Here in New Hampshire, where the IAPP is headquartered, Emma Sisti shared her thoughts on how the move to virtual court is impacting her work as a public defender. As Sisti explains it, for many of her clients incarcerated at the state prison, this means justice via WebEx.

New Hampshire’s Rules of Criminal Procedure generally require any person arrested under a warrant and not released on bail to be taken before the Superior Court within 24 hours, weekends and holidays excepted. These rules are similar across the country. Arraignments must be public.

Today, that means Sisti appears in court with the presiding judge, prosecutor and required court officers. Her incarcerated client appears via videoconference. No members of the public may participate.

"In normal times, I typically meet my clients for the first time in the courthouse immediately before an arraignment," Sisti explained. "I can confer with them in private for as long as needed. Now, if I get all of the relevant information from the prosecutor in time, I can call the jail and speak to my client. But, often due to the 24-hour timeframe, that isn’t possible."

When it isn’t, she must meet and confer with her client via WebEx just prior to the arraignment. "I have to ask everyone to leave the courtroom. I know I am taking up their time, but there aren’t other options. I also know that our conversation still isn’t private because a correctional officer is standing beside my client," Sisti said.

According to the Federal and New Hampshire Rules of Evidence and Professional Conduct, the officer’s presence negates the benefits of attorney-client privilege. The officer aside, it is unclear how the use of a third-party videoconferencing platform affects the expectation of privacy. The "third-party doctrine," which holds that there can be no expectation of privacy when information is voluntarily provided to a third party, has been the subject of multiple Supreme Court cases.

It is unclear how use of a third-party videoconferencing platform affects the expectation of privacy.

After an arraignment, confidential consultation remains a major challenge. Clients being held pre-trial typically remain at the county jail. In New Hampshire and most other states, each county has its own jail, and each jail has its own set of rules governing how attorneys and clients confer. 

Prior to COVID-19, some of these jails allowed attorneys to call in and speak with clients on non-recorded lines, imparting at least some semblance of privilege and confidentiality to the communication. Of course, inmates’ awareness of reported mass monitoring of phone calls might still cause them concern. Further, some county jails in New Hampshire and the State Prison (which houses convicted individuals and individuals who have violated the terms of their parole) never permitted clients to accept incoming calls from attorneys. Now, rules intended to protect inmates and attorneys from the transmission of COVID-19 have led to a dramatic restriction on when and how attorneys can speak with clients face-to-face, leaving them few options for confidential communications

For example, as Sisti explained, "No visitors are allowed at the New Hampshire State Prison right now, and inmates cannot take incoming phone calls. They can call me, and that should provide an opportunity for private communication. There is a process for contacting clients via their Department of Corrections issued tablets, but those emails are not confidential, they cost money to send and can be reviewed by correctional authorities at any time." Sisti can speak with her clients via video chat only from the court, and again, with a correctional officer standing beside her client. "This set up makes it impossible to have a confidential conversation with my clients and makes me question whether I can provide constitutionally effective representation under these circumstances," she said.

Sisti doesn’t question that emergency procedures are needed to protect the health and safety of incarcerated populations, officers and those who administer justice, but, she does worry that aspects of this approach might outlive the virus.

"We have to look carefully at how these procedures are working in practice and improve our approach as we move forward," Sisti said. "My concern is that when COVID-19 passes, those in charge of administering the courts will be looking down the barrel of enormous budgetary pressures and will argue that this approach is more cost-effective or safer and should be continued. Continuing as we have under this emergency will be a poor substitute for in-person justice and will prejudice those the system was created to protect."

As officials reopen states across the country, assess the emergency procedures they put in place and consider how to improve for the future, a careful look at virtual justice seems warranted.

Photo by Wesley Tingey on Unsplash

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