Apple and the Justice Department are set to spar again this week in a closely watched court case about iPads, Kindles, and e-books. But despite the high-tech topics, news about the New York trial will be recorded in the same way it has for decades and even centuries before—on hand-scrawled notepads.
Due to restrictions on phones and laptops in the courtrooms, the trial represents a rare public event that is taking place without real-time reporting. (The lawyers in the courtroom have computers, but members of the press can’t bring in anything electronic.) The case, in which Apple (AAPL) is accused of price-fixing, stands in contrast to the company’s last high-profile trial, which took place in California last summer and featured live Twitter updates and even real-time blogs.
This contrast—pen and paper in New York vs. laptops in California—shows the improvised, patchwork way that American courts treat media and technology. But more deeply, it raises questions about how courts, in the age of Twitter, should interpret the ancient common law dictum that justice must be seen.
“Judges should think about increasing public access and empowering the public to understand what’s taking place in courts,” said Jeffrey Hermes, director of the Digital Media Law Project at Harvard’s Berkman Center, in a recent phone interview. “I’m in favor of experimenting with more tech in a way that doesn’t interfere with judicial process.”
According to Hermes, America’s federal courts are more conservative than state ones when it comes to allowing electronic devices in the courtroom. He cites the current trial of gangster Whitey Bulgar in Massachusetts, which will be accompanied by live tweeting.
On the federal level, a handful of courts are participating in a pilot project to broadcast proceedings and post them to a website. The project allows members of the media to request such filming but also lets the parties to a case prevent it—which was what happened in the California trial involving Apple last year. In response, the judge in that case made a special rule allowing media members to use laptops and smartphones.
The overall state of things, however, is probably best reflected in the same California court’s website, whose media page points to a 2005 directive that refers multiple times to “PDA’s” (a now archaic acronym for “personal digital assistant”). And according to a federal court employee, there are no plans yet to update rules in response to the current pilot project that has been in place since 2011.
The upshot is that most federal courtrooms, even as they create laws for emerging technologies, continue to operate in a pre-digital environment in terms of permitting the public to witness their proceedings. The Supreme Court, meanwhile, appears stuck in a similar debate over the use of cameras.
The bottom line is that, while there will sometimes be sound reason (such as security or medical testimony) to bar technology tools from court, the current prohibitions appear to be unduly limiting—especially when nearly every other type of news event is now recorded in real time.
“Webcasting, tweeting, and broadcasting [are ways] to expand access to people who can’t come,” according to Hermes.
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