65 Pages Posted: 21 Feb 2017 Last revised: 14 Sep 2017
Date Written: February 21, 2017
The criminal justice system is becoming automated. At every stage, from policing to evidence to parole, machine learning AI and other computer systems guide outcomes. Widespread debates over the pros and cons of these technologies have overlooked a crucial issue: ownership. The developers of automated criminal justice technologies often claim that details about how the tools work are trade secrets. As a result, they 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 novel framework to address the tensions that result. Specifically, it turns to evidence law to resolve the conflict between transparency and trade secrecy with respect to emerging criminal justice technologies. In sharp contrast to an apparent consensus among courts, legislators, and scholars alike, the Article argues that trade secrets should not be privileged in criminal proceedings. A criminal trade secrets privilege is ahistorical. Compared to substantive trade secrets law, it overprotects intellectual property. And given the rules and realities of criminal procedure, the privilege is at once particularly harmful and also unnecessary in criminal cases. Further, privileging trade secrets in criminal cases fails to serve the theoretical purpose of either trade secrets law or privilege law. The trade secrets 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
Suggested Citation: Suggested Citation
Wexler, Rebecca, Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System (February 21, 2017). 70 Stanford Law Review __ (2018 Forthcoming). Available at SSRN: https://ssrn.com/abstract=2920883 or http://dx.doi.org/10.2139/ssrn.2920883