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Rural Digital Divide Complicates Virtual Court Participation

Aug. 29, 2022, 8:45 AM

Rural residents can have trouble accessing remote court proceedings that proved their value during the Covid-19 pandemic, so advocates are looking to mobile “Justice Buses,” technology kiosks and Starlink satellites to help bridge the digital divide.

Virtual proceedings are appealing for those who need to travel great distances for court appearances. The problem is they sometimes lack reliable broadband internet access, forcing courts to get creative or rely on conference calls as the second-best option, said judges, attorneys, court administrators, and scholars in 20 interviews with Bloomberg Law.

“We have a great opportunity. How often is it that you get to clear the decks and reimagine?” Stanford Law School professor Nora Freeman Engstrom said. “How do we harness technology while keeping the focus on maximizing our key objectives: participation, transparency, equity, and accessibility? To make it as good as it was before isn’t good enough.”

WATCH: Five Virtual Court Tips from Judges

Remote Geographies

State courts around the country are seeing the benefits of virtual proceedings. In California, for example, cases concerning children and their families are moving faster and helping clear backlogs, said the state’s Supreme Court Chief Justice Tani Cantil-Sakauye.

In rural states, remote court has the benefit of reducing travel time that can add up when courthouses are far away. People who work in North Dakota oil fields no longer need to lose a day of work to attend a half-hour court appearance, for example, said legal aid attorney Mary Ann Budenske. She meets with clients in the food pantry she runs in Casper, a city of 58,000 in central Wyoming.

“When you’re looking at a place like Wyoming, it’s 50 miles to the next town that has a county courthouse, and it’s 180 miles to Cheyenne,” Budenske said. “You could spend your whole life in a car.”

Still, the digital divide creates hurdles for courts trying to provide more remote services.

The Federal Communications Commission estimated 14.5 million Americans still don’t have access to broadband internet, though an organization that independently reviewed FCC data estimated the number is roughly 42 million. About a quarter of adults with household incomes below $30,000 a year reported not owning a smartphone in a 2021 Pew Research Center survey. And around four-in-ten with lower incomes said they didn’t have a desktop or laptop.

“The system cannot operate to deprive someone of access because they don’t have so-called bandwidth,” Texas Supreme Court Chief Justice Nathan Hecht said.

Patching the Divide

Technology kiosks, loaner tablets, and “Justice Buses” are some of the ways courtrooms and legal aid organizations have collaborated to help patch the divide.

Minnesota and Texas are among states creating or planning to create spaces stocked with tech and internet in libraries and other public places. Minnesota’s Legal Kiosk Project has over 250 locations across the state providing legal aid services to people without access to internet or technology. Some of these “kiosks” offer enough privacy for users to participate in court hearings or video meetings, according to the Minnesota project’s website. Other states, like Wyoming and Alaska, provide tablets that participants can use outside the court.

Mobile clinic vans, often stocked with WiFi, computers, and pro bono lawyers, drive to some rural areas with poor internet access to help residents log into court hearings and obtain legal information, Legal Services Corporation program analyst for technology Jane Ribadeneyra said. These “Justice Buses” roll through states such as New York, Ohio, and California.

Courts looked for other ways of providing access during the pandemic besides remote proceedings, said Qudsiya Naqui, who leads Pew Charitable Trust’s research on technology and the civil legal system and has studied virtual courts. For example, 28 states and Washington used physical drop boxes for filings rather than electronic means, Naqui said. Some states allowed telephone access.

Phoning In

Alaska had been using remote telephone proceedings long before Covid-19, said Stacey Marz, administrative director of the Alaska Court System. The large, sparsely populated state must sometimes fly jurors in to proceedings when there aren’t roads that can take them to the courthouse.

While the court system would like to eventually expand the use of hybrid virtual and in-person proceedings, limited broadband access in rural areas is an impediment, the state’s Supreme Court Chief Justice Daniel Winfree said.

“Telephone is okay. Video is better,” Winfree said. “We like to see people. We like to have the chance to see what people look like when they’re testifying or their reactions.”

Starlink, the satellite-internet service operated by Elon Musk’s SpaceX, could be a way for the courts to increase their access to high-speed internet. Alaska’s court system has put in applications for some of their smallest and most rural locations to use those services, Marz said.

Lingering Concerns

Iowa Legal Aid litigation director Alex Kornya cautioned against “breathless utopianism” about court technology. Even where video is an option, it may be harder to empathize with defendants in virtual courts.

“There is something about looking someone in the eye when you are going to deny something that is very important,” Kornya said. “Not having to do that makes it easier to say no.”

Courts are “keenly aware” of the bandwidth problem, said Hecht, Texas’ Supreme Court Chief Justice. Expanding the capacity for virtual court proceedings is the goal, Hecht said, but it shouldn’t prevent people from accessing justice.

“We’ll either give it to them, make it available, or let them come into the courthouse like they always have, because that’s the best we can do,” Hecht said. “But they’re not going to be shut out.”

To contact the reporter on this story: Maia Spoto in Washington at mspoto@bloombergindustry.com and Madison Alder in Washington at malder@bloombergindustry.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com