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Civil liberties advocates are pushing back against proposed rules on digital recording in Vermont courts.

The rules as drafted threaten the rights of the public and the media alike, while “ignoring the realities of modern journalism and storytelling,” according to testimony at a hearing Thursday.

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The Vermont Supreme Court held the meeting to get public input on the draft new rules, written by a special committee.

The existing rule set was written in 1988. The update seeks to take into account the dramatic changes in recording technology since then, with the advent of smartphones and other pocket devices.

Chloé White, policy director at the American Civil Liberties Union of Vermont, testified Thursday, as did Montpelier resident Stephen Whitaker, who described himself as an independent producer of media.

Both said the proposed changes would unfairly limit recording access to members of established media outlets. White also suggested the rules threaten the right to due process for anyone found to be in violation.

“The ACLU of Vermont would like to express our serious concerns regarding these proposed changes,” White said. “We feel like these proposed changes are onerous and perhaps an overreaction and pose worrisome questions regarding constitutional rights.”

The rules, which would cover the Vermont Supreme Court and the superior courts, set up a formal registration system for members of the media. Others who aren’t participating in the legal proceeding would be banned from taking or transmitting pictures and video.

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Notes accompanying the rule change proposal say this prohibition is meant to “prevent abusive use.”

The distinction drawn among participants, nonparticipants and the media, White said, raises First Amendment concerns.

According to her, the U.S. Supreme Court has held that the First Amendment grants “the press no right to information about a trial superior to that of the general public.”

She said “the judiciary is making a troublesome distinction between the media and the general public and the information they can receive and transmit.”

“This proposed rule,” White continued, “effectively bars a large segment of the public from engaging in an entire category of First Amendment-protected speech.”

Whitaker testified that the proposed rules might discourage citizen journalists or members of nontraditional news outlets from covering important stories.

“I think we all recognize that the definition of media has changed in the last decade or two — dramatically,” Whitaker said. “What I see in the draft rule — clearly written by lawyers — is that it’s so full of caveats and complexities and exceptions that it would be nearly impossible for us nonestablished media, nontraditional but emerging media outlets, to navigate.”

Whitaker also spoke to the worry of potentially being denied access.

“Sitting on pins and needles waiting to know whether you’re going to get approval or not and then competing with other more established media outlets, or traditional media outlets,” he said, “is kind of an untenable position for today’s media landscape.”

Whitaker asked the committee to adopt the rule changes provisionally and be open to revisiting them.

White echoed Whitaker’s concerns about the complexity of the proposed media registration system.

“The proposed rule creates an onerous and cumbersome process to register as media and therefore to be allowed to engage in digital recording,” White said, “potentially creating obstacles to citizen journalists and ignoring the realities of modern journalism and storytelling.”

White spoke at length about her organization’s concerns over the proposed rules authorizing the temporary seizure of recording devices. Court officers would be allowed to confiscate a device if they had “good cause” to believe it had been used in a prohibited manner.

The rules don’t adequately describe the process for confiscation, White said.

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“Will judges or other staff force those whose devices are confiscated to show them the recording or even to delete it?” White asked. “Will people be forced to turn over their device’s password? And what happens if they refuse? When will the individual recover their phone? Will there be monetary or civil consequences?”

White asked the committee to further consider its proposed changes.

Retired Justice John Dooley, who is chair of the special committee, told White that court officials are already allowed to confiscate devices for good cause.

“The confiscation or seizure rule,” Dooley said, “has already been introduced in a directive, so we sort of just took what was already there.”

Dooley said the committee had included the provision allowing confiscation because a member of a court audience might take pictures or video of a jury.

In an interview last month, Dooley said there have been cases where nonmedia members of the public used recording in an attempt to intimidate participants in court proceedings.

Superior Court Judge William Cohen told the committee that a distinguishing feature of new handheld recording devices such as smartphones is that they’re more difficult for judges to keep an eye on than a conventional news camera.

“The devices themselves are so small, so accurate that it’s difficult to see if something is being recorded or what’s being done,” Cohen said Thursday. “Whether or not somebody is even recording — you just wouldn’t know. And that’s something we’ve struggled with.”

“What can we do about that to protect the privacy of the juror?” Dooley asked. “Is it possible that we can grab the device and say, ‘Remove it’ or something like that, or is there no option like that?”

White agreed that Dooley and Cohen raised reasonable questions, but she said she still had some concerns about how the proposed rules are written.

“There are these procedural questions of who’s taking it, and when do they get it back,” she said. “Do you escort them from the courtroom then? Do you escort them from the courtroom now? Is there any sort of process?”

Thursday’s hearing was the only one scheduled, but the committee overseeing the rules change will continue accepting written comments until Sept. 18.

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