As COVID caused massive shutdowns of traditional in-person institutions, courts were faced with a dilemma. Facing severe backlogs if the courthouse doors were closed, courts quickly shifted to Zoom-based proceedings.
Today, you can watch hundreds of livestream court events—many on YouTube—ranging from felony arraignments to traffic ticket hearings to family court proceedings. For the defendant or witness, this is a welcome change. Going to court no longer requires a person to find childcare, take time off work, or risk exposure to COVID.
However, they must now contend with their name and image broadcast across the internet.
Streaming court proceedings uses the same logic as the decision to release court documents on the Internet in the late 1990s and early 2000s. Rooted in virtues of transparency and accountability, the argument is that anything you might witness or access in person by visiting court should be similarly available on the Internet.
These are laudable goals. However, the turn to digital access had the unintended consequence of creating digital punishment: a phenomenon where the collection and release of digital criminal justice information creates permanent online stigmatization for millions of people arrested or processed through U.S. courts each year.
Due to a blend of permissive public records laws that allows the release of pre-conviction and in-process case information—as well as a private market built on re-sharing and selling this information across extortion sites and background check services—millions of people have a tarnished digital reputation simply because they were processed through the court system.
As I document in my recent book, the harms of digital punishment are far reaching.
My research has shown that people who must continually confront their addiction or mistakes posted online often begin to “opt out” of institutional and social contexts that might trigger a Google search. Rather than engage in their communities, schools, or churches, people avoid situations where new people might want to learn more about them—only to discover their name on a website that has reported a court docket or a mugshot.
There are material harms as people avoid employment, educational, and housing systems that rely on increasingly automated background checks that may report incorrect, misleading or outdated information that is nearly impossible for the applicant to remedy.
There are also social harms. Dampening social and institutional participation can also decrease democratic participation, especially if digital punishment leads people toward legal estrangement, lessens procedural justice by assigning public guilt before due process, and increases mistrust in government through what people experience as state-sanctioned privacy violations.
If a victim, witness, or defendant is terrified to testify or afraid to tell the truth because they know their face and voice will be broadcast on YouTube, justice will not be served.
Another overlooked problem with digital access to courts is that we don’t learn nearly as much about judicial decision-making as we do about the individual people whose lives are broadcast across the internet during their hearings.
Recently, I watched a child custody proceeding unfold over five hours in a Texas courtroom. Through his own live streamed testimony, I learned about the father’s alcoholism and suicide attempt and watched as his lawyer screen-shared dozens of emotional text messages between the two parents.
The judge was mostly silent as the proceedings shifted to the mother, tired and in hospital scrubs, whose lawyer showed dozens of photos of the interior of her home, including of her children’s bedrooms.
In New Jersey’s Essex County, I watched an elderly man in prison garb and a face mask silently weep on video for ten minutes at his arraignment. His public defender made a case for his release based on his health and risk of death through COVID exposure. The judge rapidly read through his rights and conditions of a pretrial release. The man asked if she could call his employer to explain why he missed a week of work. The livestream ended.
Live court on YouTube has the potential to expand digital punishment in unexpected ways. We don’t know yet if and how court live streams have been recorded and replicated for extralegal purposes.
We don’t know who is watching.
Transparency is central to having an accountable judiciary. But the pace and disorganization of local courts means viewers get very little sense of how the criminal justice system really operates. Aggregate, complete data about the criminal legal system is still incredibly difficult for journalists and researchers to access. Photos of children’s bedrooms in suburban Austin do not fulfill the intent of public access for watchdogging government officials.
The solution? Courts have a simple opportunity here to instill a bit of practical obscurity, which has long been the shield for protecting individual privacy while encouraging open government. Courts can easily have users register for a password-protected Zoom proceeding.
In the digital context, this means a small, verification hurdle to encourage interested journalists, researchers and members of the public to access governmental data for accountability reasons. In some ways, password protected live streams better mirror the traditional forms of access that underlie transparency laws, where the requester has an active interest in a document, rather than a passive opportunity to make a copy.
And even as our lives have become more isolated and based in technology, we shouldn’t forget that policy decisions are a human-powered process.
The expansion of digital punishment into unexpected, pandemic-responsive domains is not the inevitable outcome of digital life. Technological advances like Zoom and YouTube do not determine their own fate; people and organizations use technologies and share data for specific ends.
We can choose a better way to ensure the judiciary is serving the public while also protecting that same public.
Sarah Esther Lageson is an assistant professor at Rutgers University-Newark School of Criminal Justice, and a grant recipient of the National Institute of Justice Early Career Award. She welcomes comments from readers.