Wearables In The Courtroom: Let’s Educate, Not Knee Jerk

The judiciary, technology, and the courtroom. It’s a relationship that has to be handled through education and understanding. Not by knee-jerk orders out of fear of perceived risks by those unfamiliar with the technology and the marketplace. It’s not orders for orders’ sake. We have already seen courts blanket banning AI without a clear understanding of what it is and can do. Now we may be seeing it with so-called smart glasses.

Recent Orders

It was recently reported that a Philadelphia Court banned “Smart/Meta/AI glasses–prescription or nonprescription–with any recording capability” from all courthouses and offices. The Order reiterates existing orders that any unauthorized recording or photography in the courtroom could result in sanctions. The Order does have a provision that would allow such glasses with prior written authorization from the court. So presumably if someone needed the glasses to better see or hear (capabilities most of the glasses have), they would have an option.

More recently, another Pennsylvania judge entered a similar Order. And Pennsylvania courts aren’t alone in trying to make rules for smart glasses. A federal court in Wisconsin did the same in February. Although somewhat inconsistently, the Order specifically allowed mobile phones.

No doubt more orders will come. The concern triggering all this is apparently the perceived ability of these devices to secretly record courtroom proceedings.

I have previously written about the benefits and risks of wearables in general and how courts may not be ready for them. The recent orders suggest this very thing, a lack of understanding of the wearable phenomenon and what to do about it.

The Problem with Blanket Orders

As with most knee-jerk rule-making efforts, there is a definition problem with these recent orders. What exactly are “smart glasses”? Presumably the word “Meta” in the orders refers to the Ray-Ban glasses that are sold by Meta although Meta also offers glasses made by Oakley. I’m also not sure what the phrase “AI glasses” means.

The orders also fail to take into account the wide range of similar glasses made by other manufacturers. Indeed, Google recently announced it will introduce (or perhaps re-introduce) similar glasses. And the rumor is Apple will soon do the same. So right off the bat, the orders appear to be coming from a lack of understanding that diminishes respect for them.

There are also a wide range of other products on the market, or soon to be on the market, which offer recording capabilities and have audio and visual tools. What about necklaces? Or AirPods with cameras, which are likely to be out soon?

For that matter, what about mobile phones? Almost all of them have audio and video recording capabilities. If they are allowed in the courtroom, as Wisconsin and most courts do, can they not be used to also surreptitiously record proceedings? How would you know? The recordings could easily be triggered on the phone itself or even by tapping a smart watch, which itself could record.

The orders also ignore another potential and significant problem: the use of smart devices that can aid lawyers and even witnesses through AI and cellular or WiFi networks. I might have glasses on that can’t record but can supply me with audio information through glass stem headphones or even with text on the inside glass screen and no one would know. But that issue is ignored entirely.

So, What’s to Be Done?

I’m not a fan of court orders that try to blanketly tackle perceived problems posed by technology. In addition to the definitional issues with burgeoning technology, there’s the problem that advances in technology may render the orders irrelevant.

We initially saw a rash of orders banning the use of “AI” from court filings, for example, which if read literally could include the use of everyday tools like Google or Grammarly. And while the use of AI at the time these orders were rendered was a rarity, it is now fairly common, making the orders appear a bit ridiculous. Again, when that happens, lawyers and litigants tend to lose respect for the judiciary.

And courts are finding that the dangers of the use of AI by lawyers — the dreaded hallucinations and inaccuracies in court filings — can be handled by the imposition of fines and even referrals to bar associations for disciplinary proceedings. While it can certainly be argued that these penalties aren’t enough, it’s better than banning something many might be using. The issue may not be whether the ability to impose the penalties is insufficient. It may be that the penalties being imposed aren’t severe enough.

So it goes with wearables. There will likely come a time when the so-called smart glasses, for example, will be as common as smartwatches are. As with AI, a ban may become impractical.

Most courts ban audio and video recording of court proceedings already. So why not rely on these requirements and accompanying penalties? Yes, it may be easier to trigger a recording from your glasses or necklace. But it’s not much more surreptitious than triggering one from your mobile phone.

It Starts and Ends with Education

Educating judges about technology is a better use of resources than knee-jerk orders. An educated judge can ask the right questions of lawyers and litigants about what devices they’re using in the courtroom and how. And can impose meaningful and appropriate penalties when lines are crossed. Our judiciary needs to know what technology is out there and its benefits and risks, just as the lawyers appearing before them are supposed to.

And the real challenge will be what to do with wearables that somehow enhance what happens in courtrooms. Where to draw the line between what’s permissible and what’s not. That’s where education comes in and where we need to be focusing. That’s got to be more effective than issuing orders without understanding the real problem. Orders that courts may be sorry for later.

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Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.