Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System

Abstract

The criminal justice system is becoming automated. At every stage, from policing to evidence to parole, machine learning and other computer systems guide outcomes. Widespread debates over the pros and cons of these technologies have overlooked a crucial issue: ownership. Developers often claim that details about how their tools work are trade secrets and refuse to disclose that information to criminal defendants or their attorneys. The introduction of intellectual property claims into the criminal justice system raises under-theorized tensions between life, liberty, and property interests. This Article offers the first wide-ranging account of trade secret evidence in criminal cases, and develops a framework to address the problems that result. In sharp contrast to the general view among trial courts, legislatures, and scholars alike, the Article argues that trade secrets should not be privileged in criminal proceedings. A criminal trade secret privilege is ahistorical; harmful to defendants; and unnecessary to protect the interests of the secret holder. Meanwhile, compared to substantive trade secret law, the privilege overprotects intellectual property. Further, privileging trade secrets in criminal proceedings fails to serve the theoretical purpose of either trade secret law or privilege law. The trade secret inquiry sheds new light on how evidence rules do, and should, function differently in civil and criminal cases.

Keywords: trade secrets, evidence, privilege, automation, algorithms, criminal justice