US court shuts out virtual viewers, suit says

OAKLAND -- Some people were shut out of a virtual court hearing Monday because of a 500-participant limit to view online proceedings in the Northern District of California.

The hearing concerned whether U.S. District Judge Yvonne Gonzalez Rogers should issue a preliminary injunction against Apple, forcing it to offer Epic Games' Fortnite in the App Store. The antitrust case is of massive public interest as the tech giant fends off accusations that its app marketplace and in-app payment processing system are anticompetitive.

While he praised the Northern District for how quickly it has adapted to court restrictions caused by the COVID-19 pandemic, First Amendment Coalition Director David Snyder emphasized everyone should be able to access proceedings. He urged the court to institute fail-safe measures, such as ensuring telephone access, for high-interest hearings.

"One First Amendment violation is one too many," he said.

The court declined to comment.

Since suspending most in-court proceedings in March, Northern District judges have largely conducted proceedings for civil and criminal cases via telephone or video conference. The court posts links to Zoom video feeds and call-in phone numbers for public access. Attorneys must register with judges a day in advance if they plan to participate in the hearing.

The Central District, meanwhile, has only recently begun to offer telephonic access to the public for limited criminal proceedings. The Southern District does not appear to offer such access, according to notices listed by the court.

Snyder said the Northern District has been "well ahead of the curve in providing alternative means of access for the public and press during the pandemic."

But some technical issues remain. Zoom video hearings are restricted to 500 people on a first come, first served basis. The limit includes hearing participants -- the judge, court staff and appearing attorneys -- as well as spectators.

The court is continuing to explore options to expand access to public hearings, according to court spokesperson Nicholas Jackson.

Because of the participant limit, unauthorized third parties streamed the hearing on platforms such as Twitch and YouTube. Most were quickly taken down. Epic Games, Inc. v. Apple Inc., 20-cv-05640 (N.D. Cal., filed Aug. 13, 2020).

The court prohibits "any recording of a court proceedings held by video or teleconference, including screen shots or other audio or visual copying of a hearing," according to a notice.

In addition to the Northern District, the U.S. Supreme Court held oral arguments via videoconference for the first time in May. Some attorneys are already calling for virtual access accommodations to remain even after COVID-19.

"Despite the glitches, technology advances in government, the courts and the law are a positive development and likely here to stay even after COVID-19," iCommLaw founder Anita Taff-Rice wrote in a July Daily Journal column.