How do virtual hearings affect people on the wrong side of the digital divide?
“You can imagine how horrible it would be if a judge asks you a question and your internet buffers and you don’t hear the judge,” says Corian Zacher, senior policy counsel at Next Century Cities. “A lot of communities still don’t have access to the speeds they need, whether they’re in urban or rural areas.” Image from Shutterstock.
The COVID-19 shutdown starting in early 2020 marked a technological awakening in many state and federal courts when the national emergency temporarily forced everybody to move online.
More than three and a half years later, more and more state courts are making Zoom and other videoconferencing platforms for civil and criminal matters part of their long-term game plans.
States including Alaska, Arizona, Florida, Illinois, Minnesota, Maryland, Michigan, North Carolina and Texas have adopted standards for virtual hearings. Earlier this year, Colorado lawmakers introduced a bill to extend remote eviction hearings, which Gov. Jared Polis approved in June. Meanwhile in California, where there are thousands of remote court hearings every day, Gov. Gavin Newsom signed into law a bill in June extending remote civil proceedings through January 2026.
Proponents of virtual hearings say they can make people’s lives easier. Working parents can attend hearings from the comfort of their homes rather than drive miles to the courthouse and don’t have to take valuable time away from work or their kids.
Nevertheless, while that flexibility may look good on paper, some access-to-justice advocates believe an over-reliance on remote hearings could hurt the technological have-nots, particularly in communities lacking high-speed internet or those without broadband infrastructure.
In 2021, the Federal Communications Commission found that about 14.5 million Americans lacked broadband internet, which it defines as having download speeds of 25 megabits per second, or Mbps, and upload speeds of 3 Mbps. A 2021 Microsoft study put the number closer to 120.4 million people, or one-third of the U.S. population.
Corian Zacher, senior policy counsel at Next Century Cities, a group advocating for affordable and accessible broadband, says reliable internet is important so people can learn their legal rights or attend virtual proceedings.
“You can imagine how horrible it would be if a judge asks you a question and your internet buffers and you don’t hear the judge,” Zacher says. “A lot of communities still don’t have access to the speeds they need, whether they’re in urban or rural areas.”
‘Basic fairness’
W. Terry Ruckriegle, a senior judge in Breckenridge, Colorado, and former president of the Colorado Bar Association, says there are rural areas in his state where there is no broadband infrastructure and people have to travel miles to use the internet so they can access legal services or participate in remote court hearings.
“If you’re trying to run a trial with people testifying remotely, that has to be reliable,” he says. “If you miss 30 seconds of somebody’s testimony, then you’re not making a decision based upon all of the information in the case.”
Ruckriegle was a Colorado state delegate to the ABA House of Delegates, and his state’s bar association sponsored ABA Resolution 10B, which was adopted in 2019. The resolution calls for increased funding for rural communities so they have a broadband infrastructure with download speeds of at least 100 Mbps, which the Federal Communications Commission is considering as its new benchmark for broadband, along with 20 Mbps upload speeds.
“Increased access to broadband is of critical importance to the legal profession, and our country as a whole for access to justice,” Ruckriegle says.
According to a Next Century Cities March 2022 report, “Cut Off From the Courthouse: How the Digital Divide Impacts Access to Justice and Civic Engagement,” the “digital divide is a civil rights divide,” and people without affordable or reliable broadband service are “often unable to enforce their legal rights” or “defend themselves in court.”
The disparities show up in major American cities too, especially in neighborhoods lacking broadband infrastructure. An investigation by the nonprofit newsroom The Markup published in October 2022 found that in areas where providers had upgraded broadband infrastructure households were offered speeds of 200 Mbps. But in neighborhoods where providers had not made upgrades, speeds were as slow as 25 Mbps.
The Markup’s analysis examined AT&T, Verizon, EarthLink and CenturyLink’s offerings over 45 cities between April 15 and Oct. 1, 2022.
It found that internet service providers were often offering “substantially lower quality internet” to people in poorer communities, communities of color and neighborhoods that were historically redlined, but whiter and more affluent areas were more often offered faster speeds for the same price.
“To put it plainly, we found these providers offered the worst deals to people who are the most in need of affordable prices for high-quality, high-speed internet,” the Markup article states.
This is a practice digital equity experts call “digital redlining.” The National Digital Inclusion Alliance defines the term as “discrimination by internet service providers in the deployment maintenance or upgrade of infrastructure or delivery of services.”
All providers the Markup investigated except EarthLink denied they were discriminating against customers, with representatives for AT&T and CenturyLink’s parent company, Lumen, calling the findings flawed.
David Forrester is the information technology director of the nonprofit legal aid organization Northwest Justice Project, headquartered in Seattle, which is one of the cities The Markup investigated.
The group is the largest publicly funded legal aid program in Washington state, according to its website. Forrester says his group has helped people seeking free legal representation in urban and rural areas and sees firsthand how low-quality internet can impact people’s daily lives.
He also says that during the pandemic, clients would often come to the group’s office to access its computers and Wi-Fi so they could participate in hearings, and many of them were fighting eviction or foreclosure.
Forrester believes lack of broadband access is an issue of “basic fairness.”
“It’s as if the court has built a fence around the courthouse and said, ‘You have to bring your own ladder to get over the fence,’” says Forrester, adding that slow internet can prevent litigants from showing up in court “as their best selves.”
Sarah Thorpe, a lawyer working for the Northwest Justice Project in King County, says some of her clients, who are mostly low-income, still depend on the group’s technology for virtual hearings.
“Most of the time, people don’t have computers at home, Wi-Fi or a device beyond a basic smartphone,” she says. “If they do have internet, it’s terrible quality.”
Thorpe says one of the group’s clients, a victim of domestic violence, was eight months pregnant when she attended a virtual hearing. The lawyer says the woman’s abuser had filed for a protection order against her and by the time of the appearance she was living out of her car.
“She was in a hearing and her cellphone died during the hearing,” Thorpe says, leading to months of uncertainty after the court entered the protection order in January 2023.
It was only after the group began representing the woman that she was able to attend virtual hearings at a shelter for domestic violence victims. In June, the protection order was finally overturned.
Rebuffering
The Infrastructure Investment and Jobs Act, which President Joe Biden signed into law in November 2021, provides $65 billion to improve broadband infrastructure and make internet plans more affordable. The law also directs the Federal Communications Commission to tackle digital discrimination.
On Nov. 15, the federal agency adopted final rules to prevent digital discrimination. Under the new rules, it could investigate and penalize companies denying equal access to high-speed, broadband internet.
Additionally, the agency has adopted rules requiring companies to put labels on their offerings, similar to the nutrition information found on food, so Americans can see how internet service providers stack up against each other.
“People need to have access to information about how much they’re paying for broadband so that consumers can see what they’re paying for internet and what their neighbors are paying for internet,” Zacher says.
Zacher says part of the problem is a lack of competition. Advocacy group the Local Self-Reliance Institute found in 2020 that more than 83 million people can only buy broadband through one internet service provider.
“Only having access to one broadband provider means higher prices,” Zacher argues.
The courts also can play a role in helping people on the wrong side of the digital divide. In July, the Florida Supreme Court greenlit a pilot program so litigants can handle small claims online. But the Florida Bar’s COVID-19 Pandemic Recovery Task Force recognized that some people might prefer a traditional in-person hearing. It recommended that the online court remain optional for litigants.
Zacher underlines the importance of home access for virtual hearings so that when people are sharing intimate and private information they don’t have to sit in a public library or jump onto public Wi-Fi at fast-food restaurants to participate or share confidential information.
“Your home means privacy,” Zacher says.
Virtual hearings mean that victims of domestic violence don’t have to face their abuser in-person in a courtroom, Thorpe says. But going remote has brought its own set of problems, especially for clients who are not native English speakers.
“It’s an everyday frustration to figure out how to get over the next hurdle and make sure that every person has their day in court,” the lawyer says.
