Rebecca Wexler (University of California, Berkeley, School of Law) has posted Evidence in the Age of Privacy: Access to Data in the Criminal Justice System on SSRN. Here is the abstract:
The California Consumer Privacy Act, scheduled to go into effect on January 1, 2020, will make it harder for people accused of crimes to defend themselves. So would the New York Privacy Act, introduced on May 9, 2019. And so would eight of eleven proposed federal privacy bills currently under consideration in the United States Congress. Most likely, lawmakers aren’t even aware of the problem.
Ongoing debates over new data privacy laws at both state and federal levels have overlooked the crucial issue of fairness for criminal defendants. The vast majority of proposed laws share a common feature — they grant law enforcement more or better access to useful data than they afford to defense counsel and the investigators who work with them. This Article is the first to identify the disparate treatment of law enforcement and the accused in the current data privacy movement. It describes the effects of similar, previously enacted privacy laws in order to show that such disparities harm individual criminal defendants, undermine the adversary system, and conceal the stakes of privacy intrusions by the government. These harms 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.
The Article argues that exceptions to privacy laws that enable law enforcement to access sensitive information should also apply to criminal defense investigators. In the alternative, lawmakers should have to explain why the treatment differs. Should legislatures fail to correct course, the Article presents novel constitutional arguments for why courts should either strike down the disparate portions of these laws or read into them parallel exceptions for defense investigators.