Attorneys in New York are hot and heavy (or should that be a-Twitter?) over rules being drafted by the Southern District of New York's Ad Hoc Committee on Cell Phones that may place severe restrictions on bringing electronic devices into the Daniel Patrick Moynihan U.S. Courthouse in lower Manhattan.
The Ad Hoc Committee is accepting comments as it formulates a policy on whether cell phones, PDAs, laptops, and other electronic devices can be brought into the federal courthouse, and held a hearing on the issue for Wednesday, July 29 (hearing notice). Update: The New York Law Journal's coverage of the hearing is here.
In the meantime, the Southern District has adopted an interim policy barring laptops from the courthouse without "a court order authorizing a specific attorney to bring a specific electronic device into the building for a specific proceeding." Attorneys who obtain such an order must "certif[y] that the laptop will not be used to send or receive wireless transmissions or record or broadcast images or sounds and that the laptop lacks that capability or that that capability has been disabled by the attorney."
This is on top of Local Rule 1.8, which provides that
No one other than court officials engaged in the conduct of court business shall bring any camera, transmitter, receiver, portable telephone or recording device into any courthouse or its environs without written permission of a judge of that court.
As a practical matter, however, until the interim policy was put in place on June 29 — not incidentally, the day that Bernie Madoff was sentenced — judges routinely signed blanket orders allowing attorneys to bring electronic devices into the courthouse, according to the New York Law Journal, while placing restrictions on their use in courtrooms.
The Federal Bar Council, the New York County Lawyers' Association and the New York City Bar Association (of which I am a former member) are among the groups that plan to comment on the issue, asking that attorneys be allowed to bring devices into the courthouse, with strict restrictions on their use in courtrooms.
Other federal district courts have similar policies:
The Northern District of New York's rules provide that "No one other than court officials and officers of the court [attorneys] engaged in the conduct of court business shall bring any cameras, video cameras, recording equipment, dictaphones, pagers, cellular phones — including camera phones, personal data assistants (PDA’s) and computers into courtrooms."
The Middle District of Georgia bans electronic devices, but provides an exception for "Judges of this court, law enforcement officers having official business within the courthouse facility, and attorneys (including any attorney in the office of the United States Attorney or the Federal Defenders Office) and their staffs . . . ."
The Southern District of Florida extends its exception for attorneys to also cover "news reporters [who] agree in writing not to email, text message, twitter, type, or use their cellular phones or other electronic device inside the District's courtrooms." But it does not define who is included — and excluded — in the term "news reporters."
The policies in state courthouses vary.
At the risk of upsetting fellow members of the bar, I have to ask: why should attorneys get to bring in cell phones, PDAs and laptops, while others entering courthouses — including litigants, witnesses, jurors, and the general public — cannot? And why should someone admitted to the bar — working as a lawyer or not — who has a blog or who writes for a publication be able to write from the courthouse hallways, while another blogger or writer who did not pass the bar exam can't do the same thing? And why should jurors and others be entirely cut off from the outside world once they enter the courthouse, while others have special privileges to remain connected? And if a court allows additional exceptions, such as for "news reporters," who does that include and exclude?
The courts, of course, have legitimate decorum and security concerns. And, as I've discussed earlier, courts should make sure that jurors do not use electronic devices to "report" on cases as they proceed, or to do their own research beyond the evidence admitted in court. The courts also have an interest in ensuring that existing federal rules against photographing and recording court proceedings are enforced, no matter how misguided these rules may be.
But these concerns are not justification for setting up a two- or three-tiered system in which some people in the courthouse have more rights to carry and use electronic devices than others. Instead, federal courts should create — and prominently post — uniform rules on the use of electronic devices in federal courthouses, which apply equally to everyone who passes through the courthouse doors (and security checkpoints).