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.
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.