Cameras and Federal Courts

17 04 2011

I have for you today some long overdue commentary on last year’s case of  Hollingsworth v. Perry,  130 S. Ct. 705 (2010), the ruling by the Supreme Court of the United States regarding cameras in federal courts. As the Court blocked an attempt by a federal court in California to broadcast the trial to other courthouses throughout the country, it was seen as a blow to the efforts to bring cameras into federal courts. It was indeed a loss, but there were many positive elements to it.

First, the Court explicitly said that it was not ruling on the issue of cameras in the courtroom, rather the ruling was limited to the fact that the comment period for changing the local rules was not long enough (thus avoiding the constitutional question). This means it lives to fight another day.

Second, the decision was 5 to 4, which means that 4 of the justices would have allowed it to proceed, and if only one of the justices in the majority truly voted based on the rule-making violation, we are in good shape.

Third, I noticed something very interesting, and I wonder if anyone else has picked up on it. The Court explicitly and implicitly approved of, the presence of the audio-visual equipment itself in the courtroom when it stated, “[w]e therefore stay the court’s January 7, 2010, order to the extent that it permits the live streaming of court proceedings to other federal courthouses.” Hollingsworth v. Perry, 130 S. Ct. 705, 709 (2010).

In fact, the Court cited the existing rules of the Ninth Circuit, (pre-experiment) which allow the “Electronic transmittal of courtroom proceedings and presentation of evidence within the confines of the  courthouse” Id at 710-711.

The majority also discusses approvingly the limited broadcast of the Oklahoma City Bombing case, without mention of the impact of the cameras in the actual courtroom, as well as the statute: 42 USCS § 10608, which opens the door to closed-circuit viewing of criminal trials. Of course closed- circuit viewing of trials cannot occur without a video camera.

In the temporary stay that it issued two days earlier, the Court explicitly referred to transmissions within the same courthouse when it stayed the broadcast “except as it permits streaming to other rooms within the confines of the courthouse in which the trial is to be held.” Hollingsworth v. Perry, 175 L. Ed. 2d 878 (2010).

This tells us that the issue for the Supreme Court is no longer the presence of the technology as it was 45 years ago in Estes v. Texas. It is the impact of what will happen outside the courtroom. The great thing about limiting the issue to the impact of the broadcast is that there is little teeth in that argument. The Court has been loath to restrict the publication of truthful information obtained in the courthouse, and has outright rejected many efforts to limit publication of courthouse records and testimony, even when extremely sensitive facts were at stake.


Text messages, some emails, are private (at least on the West Coast)

25 06 2008

The Ninth Circuit has ruled that even if your cell phone is owned and the plan is paid for by your employer, that employer cannot read your text messages. The court ruled that an Ontario police department violated an officers right to privacy when they obtained his text messages from the cell phone company to see if he had been writing personal text messages. They also ruled that if a company outsources its email service (no company server), that email is private as well.

This, despite the fact that the department had a policy clearly stating that employees should have no expectation of privacy and that the text messages and emails might be monitored. The kicker- despite that policy, they told the officer that if he paid the overage fess, his texts would not be audited. This created a reasonable expectation of privacy. If they had told him that in subsequent months they were going to audit the content of the messages, that might have been all right. The key- he had a reasonable expectation of privacy, and the search was unreasonable.

Clearly he did expect privacy- he had been writing sexually explicit messages to his wife.

Remember, that this is the 9th Circuit. This may lead to a different result in the 5th Circuit. But the Ninth Circuit, having jurisdiction over silicon valley, has a lot of experience with adjudicating tech cases

Source, Quon v. Arch Wireless Operating Co.