Defining the Media: New Personal Technology and Court
Rules
Anne Endress Skove
For links to many of the resources cited in this article, set your Web
browser to www.ncsconline.org/WC/Publications/KIS_Camera_
Trends03.pdf.
Defining “the Media”
The proliferation of new personal technologies will increas-
ingly challenge court policies and procedures that ensure
the safety and privacy of court participants and the security
of court documents.
Cell phones with digital cameras are but one example
of a new technology that could threaten courts. Such
devices are among the fastest selling handsets on the mar-
ket: 200,000 units were sold in 2002, and 7,000,000 in
2003. It is anticipated that 50,000,000 will be sold in 2004.1
Businesses are banning cell phones with built-in digital
cameras to protect trade secrets. Health clubs are banning
them to protect the privacy of their clientele in locker rooms
and showers. Courts, too, are starting to become aware of
the effect of cell camera phones on juror privacy2 or under-
cover officers.
Cameras and other media in the courts have always
been regulated to some extent. Most jurisdictions started
with an experimental rule.3 Many such rules became per-
manent. However, most were written decades ago, when the
only inkling of personal videophones came from the
Jetsons. Today, cell phones with digital cameras and related
technologies are increasingly common. Lawyers, litigants,
and jurors might have such items with them. New and inex-
1 Source: International Data Corp.
2 Paula Hannaford, “Making the Case for Juror Privacy: A New Framework
for Court Policies and Procedures,” white paper, National Center for State
Courts, Williamsburg, Va., 2001. Online at http://www.ncsconline.org/WC/
Publications/Res_Juries_JurorPrivacyWhitePaperPub.pdf.
3 John Rockwell and Madelynn Herman, “Cameras in the Courts: Summary
of State Rules,” memorandum, Knowledge and Information Services, National
Center for State Courts, Williamsburg, Va., updated December 2002. Online
at http://www.ncsconline.org/WC/Publications/KIS_CameraPub.pdf.
pensive technology, coupled with increasing use of public
access cable television, allows individuals to “broadcast”
their own tapes of court proceedings. Yet most of the court
rules on point refer to “broadcasters,” “the media,” “news
coverage,” etc., not individuals.
Existing Rules
How can courts safeguard confidentiality, juror privacy,
children in court, and other sensitive proceedings, while
keeping the court open to the public? Existing rules, already
in effect, may apply. Many rules allowing media access are
considered to be exceptions to a total ban on media access.4
For example, rules about regulating television cameras in
the court may be construed as providing an exception to a
general ban on Polaroids, cell phone cameras, handheld
video cameras, and the like by attendees who are not mem-
bers of the media.5 Indeed, the intent of such rules is to pro-
vide the public with access to court proceedings—access
that would not otherwise be feasible.
Most rules also require:
• written notice;
• factors for consideration;6
4 California Rule 980(c) states: “Except as provided in this rule, court pro-
ceedings shall not be photographed, recorded, or broadcast.”
5 Note, however, that the media do not have more First Amendment pro-
tections than the general public.
6 California Rule 980(e)(3)(i)-(xix) factors include importance of public trust
and confidence; importance of public access; the wishes of the parties; nature
of the case; privacy rights of and effects on participants (witnesses, excluded
witnesses, jurors, victims, children); scope and effect of coverage; effect on
jury selection; effect on ongoing law enforcement activity; security; financial
burdens; maintaining of order in the courtroom and in neighboring court-
rooms; and other factors deemed relevant by the judge.
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 2003 Report on Trends in the State Courts
• limitations on the number of lights, cameras, people, etc.;
• a procedure for requesting access; and
• judicial discretion in admitting or excluding cameras or
other audio/video recording devices.
Security
Courts may be able to protect privacy and public safety by
enforcing current security rules. For example, most courts
ban cell phones because they disturb the trial, not because
they might have video capabilities.
Faced with a request by a citizen to tape public court
proceedings, a Michigan court7 requested approval of a
local administrative order that would designate the
requester as a member of the media and bring that person
under the provisions of a state supreme court administrative
order governing media coverage of court proceedings.
Because the person was not an accredited member of any
media organization, the court determined that it would be
more appropriate to ban the type of equipment under the
court’s security policy. Several other Michigan courts have
followed suit and now have security policies banning any
electronic recording device, unless authorized by the
assigned judge. This allows families to document important
events, such as weddings or adoptions.
Other technological “advances” create more critical
security risks. New “cell phone stun guns,” for example,
provide an electric shock up to 180,000 volts but look like
harmless cell phones. Such items provide yet another reason
for courts to establish security-screening procedures that
would either ban all cell phones or require owners to
demonstrate that they are in working order before entry.
Court security is already in a heightened state since 9-11. It
is easy for courts to apply existing security measures to the
security risks posed by new personal technologies.
New Rules
If existing rules appear inadequate, or if updates are neces-
sary for other purposes, courts might consider drafting new
rules. New rules should be crafted to encompass existing
personal technology while anticipating future inventions.
Regulation of specific types of technology might be con-
7 Note that in 1996, the Michigan Court of Appeals ordered a district court
judge who had summarily denied several camera requests to consider the
merits of such requests on a case-by-case basis. Marjorie Cohn and David
Dow, Cameras in the Courtroom: Television and the Pursuit of Justice
(Jefferson, NC: McFarland and Company, Inc., 1998): 148.
36
strued literally to make new technologies immune. Most
current rules specify “recording device” or “audio/visual”
technologies and are thus not subject to obsolescence.
Well-crafted rules should also refer to the type of
device (in a general way) rather than the type of user. This
way, courts need not define “the media” and may apply
rules to anyone attempting to use such devices.
An alternative is to have rules that clearly apply to the
media, as well as rules that clearly apply to individuals. In
California, Rule 980 not only mentions “media” and
“media agencies,” but also refers to “personal recording
devices.”8
New Technology
Online court records changed the way courts and the public
viewed court records. Were online versions similar to the
already-public court records, or did they pose a new threat
of identity theft and public embarrassment to parties? This
question is still being answered.9 However, most courts that
possess the means to provide online records to the public
now do so, with safeguards, such as limited access to health
insurance or Social Security Numbers or a grievance
process.
Conclusion
As Chief Justice Ronald M. George of California notes:
While the courts have a fundamental duty to protect the
fair and equal administration of justice, the public’s
understanding of the justice system depends in large part
on information provided by the media. There are times
when the rights to fair trial and free press are at odds
with each other. The ultimate duty of our judges is to
balance these competing interests and find the best solu-
tion for all concerned.10
New, inexpensive, and prolific technology has added one
more item to balance.
8 R.980(d).
9 See, e.g., Kent Pankey, “Conflicting Interests : Privacy vs. Access to
Records,” and Laura Morgan, “Online Divorce Records: Do Courts Need to
Strengthen the Lock on the Bedroom Door?” in Report on Trends in the State
Courts, 2001 (Williamsburg, VA: National Center for State Courts, 2001), pp.
5, 24-28. Online at http://www.ncsconline.org/WC/Publications/KIS_CtFutu_
Trends01_Pub.pdf.
10 Judicial Council of California Task Force on Photographing, Recording,
and Broadcasting in the Courtroom, Photographing, Recording, and
Broadcasting in the Courtroom: Guidelines for Judicial Officers (San
Francisco: Judicial Council of California, 1997).
 Defining the Media: New Personal Technology and Court Rules

Resources
Serros, Andrew. “Camera Access in America’s Courtrooms.” The News Media and the Law (Fall 2003): 46-47.

Dybis, Karen. “Businesses Shutter Camera Phones; Privacy Concerns Spur Industry, Government, to Regulate Use of Easily
Hidden Devices.” Detroit News (November 30, 2003).

Patterson, Delores. “Courts Ban Cell Phone Cameras; High-Tech Gadgets Concern Judges.” Detroit News (November 21,
2003).

Huber, Stephen W. “Picture Phones Banned in Court.” Oakland Press (November 13, 2003).

Amended Decorum Order. People v. Bryant, 03 CR 204 (October 7, 2003).

Zetie, Carl. “The Death of Privacy—Again.” InformationWeek (July 14, 2003).

Taylor, Humphrey. “Most People Are ‘Privacy Pragmatists’ Who, While Concerned about Privacy, Will Sometimes Trade It
Off for Other Benefits.” The Harris Poll® #17 (March 19, 2003).

Judicial Council of California. Cameras in the Courtroom: Report on Rule 980. San Francisco: Judicial Council of California,
May 2000.

Cohn, Marjorie, and David Dow. Cameras in the Courtroom: Television and the Pursuit of Justice. Jefferson, NC: McFarland
and Company, 1998. KF8725 C63 1998.

Judicial Council of California Task Force on Photographing, Recording, and Broadcasting in the Courtroom. Photographing,
Recording, and Broadcasting in the Courtroom: Guidelines for Judicial Officers. San Francisco: Judicial Council of
California, 1997. KFC955.5 C35.

Court Technology Advisory Committee. Report on the Application of Video Technology in the California Courts. San
Francisco: Judicial Council of California, Administrative Office of the Courts, August 1997. KFC955.5 C33.

ABA Section of Litigation. Cameras in the Courtroom. Chicago: American Bar Association, 1995. KF8725 C36.

Hays, Steven W., and Cole Blease Graham, Jr. Handbook of Court Administration and Management. New York: Marcel
Dekker, Inc., 1993. KF8732 H28 1993.

Reporters Committee for Freedom of the Press (http://www.rcfp.org)

CourTopics (www.ncsconline.org/WCDS/topiclisting):
Cameras in the Court; Managing Notorious Cases; Courts and the Media;
Privacy and Public Access to Court Records; Public Information Officers; Court Security.

ABA Division for Media Relations and Communications Services

312-988-6171 (Chicago)
202-662-1090 (Washington D.C.)
www.abanet.org/media/contacts.html

ABA Division for Media Relations and Communication Services

312-988-6171 (Chicago)
202-662-1090 (Washington, D.C.)
www.abanet.org/media/contacts.html

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