Exploring virtual legal presence: the present and the promise.

• Author: Natale, Jessica M.
• Position: Report

1. INTRODUCTION

   Virtual legal presence is a term with various shades of meanings in different industries but its essence remains constant; it is a new tool that enables some form of telecommunication in which the individual may substitute their physical presence with an alternate, typically, electronic presence. Considering its novelty, virtual presence is a difficult genre in terms of any substantial history whether it be legislative, editorial or otherwise. Therefore this paper will endeavor to develop a series of arguments concerning the usefulness and reliability of virtual presence as a tool for future online and otherwise electronic activities such as: e-commerce, learning, and politics, etc. This discussion will also present a survey of virtual legal presence: what it means presently, new industry developments, its problems and advantages, and lastly some speculations as to its future. (1)

   Virtual legal presence arguably will be one of the most important aspects of personal communication in the twenty-first century: the ability of people to conduct multiple everyday tasks, i.e., voting, marriage, arraignments, shareholder meetings, by being virtually or electronically present whether it be through the Internet, video, or other communications, perhaps even psychical one day. In any event, in 2002, the concept of virtual legal presence is gaining consumer confidence and expanding into an increasing number of industries. The Federal Government has taken notice and has created an E-Government initiative. States, such as California, have experimented with voting for elections online. More people are learning via teledistance courses and being healed via telemedicine devices. As technology advances, so will the sophistication of virtual presence leading into a new understanding of what it means to be present in any sense of the word. (2)

2. VIRTUAL LEGAL PRESENCE IN STATE GOVERNMENT

   1. Sunshine Laws--Definition and the Problem Posed

      The nuances of virtual presence in relation to open-meeting laws' presence requirements is causing politicians and the public at large to reevaluate what it means to be present, whether a board member is present by telephoning in votes or teleconferencing or whether a meeting truly is accessible and open to the public if it is conducted online. (3) Currently, the law is wrestling with the acceptability of virtual presence and the public is considering the benefits and disadvantages of being virtually present for governmental meetings. Specifically the Sunshine laws are a set of guidelines, which ensure public access and exposure to governmental meetings concerning public matters, the name being derived from the phrase, "Let the sun always shine on government." (4) These laws are integral idea to the American political process, allowing the public to monitor their public officials and hold them accountable for their actions. (5)

      The basic goal of these "sunshine laws" is to maintain or restore public confidence in the political process through disclosure. (6) These laws also mandate "disclosure of political contributions are common elements of fair election practices laws, and can also facilitate interim monitoring of public officials." (7) Virtual presence is achieved through a number of electronic means such as email, teleconferencing, videoconferencing, and even electronic bulletin boards. The major problem with virtual presence conforming to preexisting open-meeting laws, is the interpretation of what it means to be present for these meetings. Typically, being present meant being at meetings in person. Today, electronic presence is a convenience and part of modern society which cannot be ignored. Therefore the crux in the presence issue lies in the public's opinion about virtual presence and its acceptability in being tantamount to physical presence at meetings.

      As all public meetings have transcripts or minutes, meetings of virtual presence must archive all emails and posted opinions from electronic bulletin boards and web site feedback and make them part of the public record. (8) Government officials must never discuss personal opinion about legal issues in their private emails and voicemails. When it comes to appropriate action in regard to preventing Sunshine law violations and proper record keeping, it is best to always look at the state's charter, consult the state attorney general for guidance and lastly, inform all participants that what they type or "say" in the electronic forum is on the public record. (9) Usually, the Internet is merely regarded as just another form of electronic communication. (10) Therefore, analogizing to pre-existing laws for non-online forms of communication for legal guidance is a safe bet. For example, if a state law absolutely requires notice and public participation for a meeting, it does not matter whether the meeting takes place on the Internet, in person or on the phone, Sunshine laws are violated if either notice or public participation is denied.

      The definition of virtual presence often is modeled according to how different by-laws, statutes and laws define presence in the physical sense of the term in regards to being present at meetings. A "meeting" includes the discussion or presentation of any public matter, official business, or policy of the agency. (11) To ensure that open meetings indeed remain open to the public, full transcripts of meetings held online should be provided to members of the public who are unable to have online access to these meetings until the technology exists for the general public to oversee the meeting online. (12) Transcripts of online meetings are no more redundant than transcripts of face-to-face meetings, and are a small financial expense in order to ensure that e-government activities are held accountable to the people of the United States. (13)

      Public meetings being held via teleconferencing are prohibited in some states, such as New York, Texas and Massachusetts. (14) In the states that do allow virtual presence in the form of teleconferencing or e-meetings like Iowa, usually at least a quorum of physically present people is needed if there is to be a virtual participant. (15) Case law exists in Illinois that allows public bodies to permit attendance of board members via telephone conference call and speaker telephone. (16) Additionally, the Illinois open meetings act allows some public meetings to be held by telephone conference call. (17) The Illinois School Boards Association reflects these allowances by inserting this language into its school boards meetings policies: "Board members may attend meetings via a telephone conference call and speaker telephone. A majority of the full membership of the Board shall constitute a quorum whether individuals are present physically or via a speaker telephone." (18) Local boards have the authority to accept or deny the practice.

      In Colorado, the legislature recently gave school boards the option to teleconference meetings but the school boards had no actual legal authority to do so. (19) Presumably because the Colorado Sunshine Act defines a meeting as "any kind of gathering convened to discuss public business, in person, by telephone, or by other means of communication," (20) the school boards could eventually receive the actual legal authority to teleconference. (21) If the popular voice regards virtual presence with the same deference as it does with physical presence and realizes its amazing potential in terms of convenience, efficiency and other benefits, the legislature should reflect those desires.

      Whether a meeting is by telephone or video conferencing, sunshine requirements still apply. Some states allow teleconferencing just for sick, disabled people or "when it is otherwise difficult or impossible for the member to attend the meeting in person." (22) Other states only permit meetings via electronic networks if physically convening at one location is difficult or impossible. (23) Board meetings via teleconferencing must protect the rights of the parties or the public appearing before the Board, including the right of the public to address the Board directly at each teleconference location. (24) The Virginia Freedom of Information Act Advisory Council backed a ruling by the state attorney general that email exchanges do not violate open meeting laws, even when messages are sent among several officials. (25) But the executive director of the same council said that an official electronic discussion group, a list server, would violate the state's sunshine laws. (26) One state, New Hampshire, has attempted to solve the problem of emails violating Sunshine laws by establishing an email reflector, which automatically redistributes all committee email to a mailing list and automatically keeps a copy of it, thereby making the contents of all emails available for public inspection, as required by the sunshine laws. (27) This kind of innovation will pave the way for future harmonization of virtual presence with pre-existing physical presence laws.

      i. Acting Massachusetts Governor Jane Swift's Maternity Leave

      In 2001, Acting Massachusetts Governor Jane Swift made national and international headlines when she gave birth to twin girls while in office. Great controversy surrounded this birth not only for cultural reasons, i.e., people questioning whether she could be a working parent and Acting Governor effectively at the same time, but also whether she was present according to the definition of "presence" when teleconferencing from a hospital bed in a maternity ward. (28) When the Governor's Council voted 5-3 whether to seek an advisory opinion from the Supreme Judicial Court as to whether or not it was legal for Swift to preside by phone during meetings, the backlash caused by that vote resulted in so much controversy that the court never rendered an opinion on the matter. (29)

      Unlike Massachusetts, some states allow teleconferencing just for sick...