Privacy Asymmetries: Access to Data in Criminal Investigations
68 Pages Posted: 6 Aug 2019 Last revised: 21 Aug 2020
Date Written: July 29, 2019
This Article introduces the phenomenon of “privacy asymmetries,” which are privacy laws that grant law enforcement more or better access to sensitive information than they afford to criminal defense investigators. Privacy asymmetries are a foreseeable, albeit previously unrecognized and almost certainly unintentional, pattern in information privacy laws. Many privacy asymmetries unnecessarily threaten accuracy and fairness in criminal proceedings by making relevant evidence selectively unavailable to the accused. Moreover, the harms from privacy asymmetries will only increase as third party service providers collect more and more data about our heart beats, movements, communications, consumptions, and more, much of which will be relevant to criminal investigations. Meanwhile, the introduction of artificial intelligence and machine learning technologies into the criminal justice system will exacerbate the consequences of privacy asymmetries because defendants’ unequal access to data will impede the deployment, assessment, and development of these new technologies for defense purposes. To correct course, legislators enacting new data privacy laws should consider including symmetrical exceptions for law enforcement and defense investigators alike.
Keywords: Evidence Law, Data Privacy, Criminal Justice
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