According to the statistic provided by TrustRadius? , “Zoom” dominated 50 percent of the video conferencing software market in 2021 and has already surpassed 350 million daily meeting participants. These numbers are expected to grow so long as the COVID-19 pandemic is still threatening our community. Across the world, courts in every country are struggling to continue their judicial operation amidst pandemic by relying on remote technology and limiting the in-person proceedings. Seemingly, Zoom became one of the most chosen remote software in several jurisdictions, but some expressed concerns over the constitutional and security issues because of its bad reputation in risking user’s right and privacy. The question then arises ‘how can the court manage to build safer and constitutionally legitimate remote trial?’ This essay will identify some constitutional and privacy issues posed by remote trial.

The Application of Zoom Court Trial

The outbreak of the COVID-19 pandemic causes difficulties to the judicial operation around the world for over 2 years. Courts in almost every jurisdiction has no choice but to suspend in-person trials and conducted the online trials through the video conferencing platform. In doing so, courts had to decide which video conferencing software that they will rely on. As expected, Zoom seems to be the best choice at first glance as it gained reputation during the beginning of the lockdown, and some jurisdictions relied on Zoom as their mainstream channel.

As to the State Court of Texas, in response to COVID-19, the Supreme Court of Texas currently requires that the court may continue to use reasonable efforts to conduct proceedings remotely through Zoom and also recommends people involving in the court proceedings to learn how to successfully participate in the Zoom court trial.

Turning to Thailand, courts are now operating their virtual trial through Zoom application, because they believed that Thai people were most familiar with Zoom after the massive and continuous use during the lockdown. Most importantly, zoom itself is free, easy to use, and does not require a login to access a meeting. These qualifications, combined with the fact that Zoom is well-known and widely used among Thai people, make it easier for Thai courts to increase public access particularly among those living in the rural areas.

However, in rush to manage the fallout of the pandemic, these courts seem to overlook the potential violation of constitutional rights and people’s privacy.

Concerns Over the Constitutional Rights and Data Privacy

Even though Zoom gained trust from every corner of the world during the dark time of the pandemic, people are currently realizing that Zoom might actually come with the cost of giving up their constitutional rights and personal data as follows

1. Violating the Sixth Amendment’s Confrontation Clause

The first challenging hurdle is about the right to confrontation as the Sixth Amendment requires the introduction of evidence against a criminal defendant to be properly tested. A proper test requires that the defendant have a meaningful opportunity to cross-examine witnesses, and jurors are provided a full opportunity to evaluate witness’s credibility. These requirements are undoubtedly satisfied by face-to-face confrontation but are doubtfully achieved by the virtual confrontation.

2. Limiting the First Amendment’s Right to Public Access

The First Amendment requires the “public access” to the judicial trial in order to guarantee transparency by having the public observation. This constitutional requirement seems to be vulnerable as broadcasting a trial alone could not result in two-way communication. A one-way streaming link may provide sufficient information but fail to provide the interest of public control in the way the First Amendment intends.

3. Lacking Participation by Marginalized People

Access to the internet and a level of computer literacy are required to participate in a remote proceeding. The concern here is that if the only way to access to remote trial is through technologies, it will inevitably exclude those marginalized people who do not use technology or cannot afford technological tools. This means that the court cannot offer access to justice and the opportunities that the law provides.

4. Risking People’s Privacy

Over the past couple of year, Zoom has been involved in multiple unsavory reputations. For example, “False end-to-end encryption claim (E2EE? ),” which caused Zoom to pay more than $80 million to settle the class action lawsuit brought against them for making false statement. Also, “Zoom-bombing” and “Zoom phishing” are the example of software’s security flaws that were frequently reported by the users and seriously exposes people’s privacy to a great danger. Although some of them have now been addressed, but commentators believe that there are still many vulnerabilities waiting to be discovered.

Lessons Going Forward

While the question ‘whether the courts will continue to rely on Zoom for the remote proceedings in the coming years?’ remains unclear, and some jurisdictions are planning to resume some in-person proceedings, the virtual court trial is considered to be coming anyway. Therefore, the courts must learn some lessons and take the following steps to improve protection on people’s constitutional rights and privacy.

First, as the Supreme Court in Maryland v. Craig (1990) ruled that the confrontation clause was not absolute, the court is expected to be a “gatekeeper” to allow the remote trial only upon a case-specific determination that doing so is necessary and that the testimony is reliable.

Second, courts should step in to improve access to justice, empower marginalized people, and help bridge the digital exclusion by, for example, providing internet hot spot or making conference rooms available to use during remote proceedings, or establishing safe and reliable access points within community.

Finally, while many excellent video-conferencing software exist in the market, they are rarely completely secured. In the long run, courts might need to build their own video-conferencing software, which is completely under the control of the judiciary, to ensure that the user’s personal data and privacy will not be deprived by any profit-oriented company.