Leonard Deutchman

As per a standing order by the chief judge for the U.S. District Court for the Eastern District of Pennsylvania effective June 3, the U.S. Marshal must “implement a new procedure to regulate the possession and use of cameras and personal electronic devices, such as cellular telephones, smartphones, laptop computers, recording devices and tablet computers, by all visitors to all U.S. courthouses and other federal court locations in the Eastern District.” The purpose of the new procedure is “to ensure the personal security and privacy of parties, witnesses, judges, jurors and counsel involved in court proceedings.” The new procedure curtails the usage of cameras and personal electronic devices within U.S. courthouses and other federal court locations within the Eastern District of Pennsylvania. The procedure came in response to complaints by criminal defense attorneys and others that agents from Immigrations and Customs Enforcement (ICE) and the Department of Homeland Security (DHS) took photos of persons talking to or otherwise in physical proximity of defendants inside or just outside of federal courthouses, thereby scaring away such persons and so preventing defendants from presenting the testimony of such persons at hearings in the courthouses.

In this month's article, we will discuss whether the new procedures under the standing order should be effective and the cost of those procedures to those attempting to discharge their duty to protect the United States. As usual, we will find that the answers to these questions are ambiguous.

The Order

Paragraph 1 of the order is hardly controversial. It directs that “all cameras and personal electronic devices shall be subject to inspection upon entry at all designated court security checkpoints. Such devices may not be used in violation of Federal Rule of Criminal Procedure 53 (prohibiting courtroom photography and broadcasting in criminal cases), and Local Civil Rule 83.3 (prohibiting courtroom photography and broadcasting in all cases, except upon approval by the chief judge for investiture, ceremonial or naturalization proceedings).” Paragraph 2, however, is where true changes are first articulated. It directs that, “subject to the exemptions set forth in Paragraph 4 of this standing order, all cameras, cellular telephones, smartphones, and similarly sized personal electronic devices shall be turned off in the presence of court security officers upon entry to the courthouse and placed in a locked pouch provided by the U.S. Marshal. Devices shall remain in the locked pouch in the possession of the owner while in the courthouse.”

Apparently, simply ordering that the devices be turned off is insufficient to prevent the user from using them to take photos or broadcast. We all know that, today, the devices the order has in mind can easily take photos and broadcast them (go to the boardwalk in the summer or to any place of interest and you will see friends and families by the dozens taking photos with the key building/mountain/wild animal in a zoo cage, etc. behind them).

Interestingly, the order does not require the court system to take possession of the devices in the locked pouches and return them to the visitors upon their departure. Rather, it is the responsibility of the visitor to carry the device(s) within one or more locked pouches, not attempt to unlock the pouch and return the pouch upon his departure.

The order provides exceptions to the locked pouch requirement. Those exceptions include: Attorneys with either a valid bar identification card or credentials of the U.S. Department of Justice or the Office of the Federal Public Defender; petit or grand jurors, but only those who have been summoned and seated; judicial officers, employees of the U.S. District Court or the U.S. Court of Appeals for the Third Circuit, as well as any other federal court employees on official business; volunteer law clerks and interns for the U.S. District Court or Third Circuit; law enforcement officials on official business; and, members of the press or media representatives on official business, whose electronic devices must be turned off (not on silent or vibrate mode) before entering the courtroom. All must have valid and appropriate identification.

Discussion

What is perhaps most interesting about the order is that while its purpose is to limit those “civilians” (federal employees, law enforcement and all others who help the courthouse run or who are part of the legal community are exempt) who enter the courthouse from using cellphones, smartphones, etc., it does not restrict such civilians from entering the courthouse. Such a restriction may be unconstitutional, but without such a restriction the key reason for the order is not truly addressed.

The key reason for the order is to stop or diminish the intimidation of witnesses. Discussion pertaining to the order prior to its enactment centered on claims that many witnesses, accompanying litigants to court who might be in the United States illegally, were themselves here illegally and did not want to come to court on behalf of such litigants for fear that ICE agents or other federal, state or local law enforcement would demand from them proof of their legal residency status and, absent that proof, take action against them. Whether to keep such agents not otherwise subpoenaed or required to be in the courthouse from entering it was one solution discussed at length but rejected. Preventing such agents from capturing those witnesses in smartphone photos or video was the solution on which the Eastern District relied.

It is easy to see the inadequacies of this solution. Agents outside of the courthouse can always focus on targeted defendants and take photos or video of those surrounding them. For federal agents, the video can also include interception of verbal communications, so long as nothing is done to force the targets to permit such interception (Pennsylvania law may prohibit such interception; the question is unsettled, but state court opinions involving similar fact patterns tend to favor the targets here). The various agencies of which the agents are members can simply prohibit such photos, video or interceptions outside of the courthouse, but such is not a part of the order issued and probably not something the chief judge can order: he has jurisdiction over federal agents, but no laws give him the power to order their actions on the street, and he has no jurisdiction over state agents or private citizens. Thus, the order provides a “solution” to the problem of agents intimidating potential defense witnesses that is inadequate to solve the problem.

Conclusion

It is unclear what problem the order under discussion is trying to solve. If it is simply trying to rid the courthouse of the often interrupting and disturbing rings or other sounds of cellphones when calls or texts come in, calendar appointments come about, and so on, then the order is not particularly controversial or interesting. If, however, it is attempting to address complaints that photos and videos taken by federal or state agents of potential defense witnesses scare away such potential witnesses from coming to the courthouse and thus prejudice the defendant, the order is interesting but in no way sufficient to accomplish its goal. Response to implementation of the order shall tell us whether it is working and to what goal. If defense counsel continue to complain of the possibility of agents intimidating defense witnesses or complain of the interception of conversations conducted in public areas among such defense witnesses, we will understand properly the purpose of the law and whether it is accomplishing that purpose. If the judiciary and others comment that the absence of interruptions by ringing cellphones has made the courtroom experience much better, we will see the order accomplishing a far different purpose. Until then, we can only follow the order, as we do so many other orders, regulations and laws, because it has been issued.

Leonard Deutchman is a legal consultant recently retired from one of the nation's largest e-discovery providers, KLDiscovery, where he was vice president, Legal. Before joining KLDiscovery, he was a chief assistant district attorney at the Philadelphia District Attorney's Office, where he founded the Cyber Crime Unit and conducted and oversaw hundreds of long-term investigations involving cybercrime, fraud, drug trafficking and other offenses.