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

61 Pages Posted: 21 Feb 2017 Last revised: 15 Apr 2017

Rebecca Wexler

Data & Society Research Institute

Date Written: February 20, 2017

Abstract

From policing to evidence to parole, data-driven algorithmic systems and other automated software programs are being adopted throughout the criminal justice system. The developers of these technologies often claim that the details about how the programs work are trade secrets and, as a result, cannot be disclosed in criminal cases. This Article turns to evidence law to examine the conflict between transparency and trade secrecy in the criminal justice system. It is the first comprehensive account of trade secret evidence in criminal cases. I argue that recognizing a trade secrets evidentiary privilege in criminal proceedings is harmful, ahistorical, and unnecessary. Withholding information from the accused because it is a trade secret mischaracterizes due process as a business competition.

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

Suggested Citation

Wexler, Rebecca, Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System (February 20, 2017). Available at SSRN: https://ssrn.com/abstract=2920883 or http://dx.doi.org/10.2139/ssrn.2920883

Rebecca Wexler (Contact Author)

Data & Society Research Institute ( email )

36 West 20th Street
New York, NY
United States

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