Privacy Asymmetries: Access to Data in Criminal Defense Investigations

73 Pages Posted: 6 Aug 2019 Last revised: 12 Dec 2020

See all articles by Rebecca Wexler

Rebecca Wexler

University of California, Berkeley, School of Law

Date Written: July 29, 2019

Abstract

This Article introduces the phenomenon of “privacy asymmetries,” which are privacy statutes that permit courts to order disclosures of sensitive information when requested by law enforcement, but not when requested by criminal defense counsel. In the United States adversarial criminal legal system, defense counsel are the sole actors tasked with investigating evidence of innocence. Law enforcement has no constitutional, statutory, or formal ethical duty to seek out evidence of innocence. Therefore, selectively suppressing defense investigations means selectively suppressing evidence of innocence. Privacy asymmetries form a recurring, albeit previously unrecognized, pattern in privacy statutes. They likely arise from legislative oversight and not reasoned deliberation. Worse, they risk unnecessary harms to criminal defendants, as well as to the truth-seeking process of the judiciary, by advantaging the search for evidence of guilt over that for evidence of innocence. The number of these harms will only increase in the digital economy as private companies collect immense quantities of data about our heart beats, movements, communications, consumption, and more. Much of that data will be relevant to criminal investigations, and available to the accused solely through the very defense subpoenas that privacy asymmetries block. Moreover, the introduction of artificial intelligence and machine learning tools into the criminal justice system will exacerbate the consequences of law enforcement’s and defense counsel’s disparate access to data. To avoid enacting privacy asymmetries by sheer accident, legislators drafting privacy statutes should include a default symmetrical savings provision for law enforcement and defense investigators alike.

Keywords: Privacy Law, Criminal Justice, Evidence Law, Data Privacy, Artificial Intelligence, Machine Learning

Suggested Citation

Wexler, Rebecca, Privacy Asymmetries: Access to Data in Criminal Defense Investigations (July 29, 2019). UCLA Law Review, Vol. 68, No. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3428607 or http://dx.doi.org/10.2139/ssrn.3428607

Rebecca Wexler (Contact Author)

University of California, Berkeley, School of Law ( email )

691 Simon Hall
Berkeley, CA 94720
United States
510 664 5258 (Phone)

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