The criminal legal system is unequal. Technology was supposed to help. But most of the time, technological advances end up magnifying inequality instead. Consider an example as simple as security cameras. When I was a public defender, I arraigned a case where a young man––we’ll call him Peter––was charged with felony assault on a police officer. But when I met him, he had been taken to the hospital and given staples to treat a head wound. He said that this was because the police had attacked him, not the other way around. None of this was uncommon: Police who abuse civilians regularly charge them with assault to avoid lawsuits.
Peter told me he didn’t want to take the plea that the prosecutor was offering, because if we could get the surveillance footage from the doughnut shop where the incident took place, it would support his theory. So I asked my investigator to go get the footage. By the time the investigator got to the doughnut shop, though, the NYPD had already gotten a copy of the footage and told the shop owner to refuse to give it to anyone else. This was legal. So I asked the prosecutor to share the video with me. She refused. I asked her to tell me what she saw on it. She refused. So my client, who faced the possibility of a long pretrial detention at Rikers Island and worsening plea offers, decided to take the deal. He now has a criminal record.
This is one quotidian example of how a simple technology can contribute to existing power asymmetries baked into the system. But the examples do not end there. DNA evidence, for example, often considered a neutral form of incontrovertible proof, suffers from similar problems. Prosecutors, including Senator Kamala Harris when she worked in law enforcement, are by their very positions empowered and incentivized to oppose testing samples that could help exonerate people, including people scheduled to be executed. This happens routinely.
And, as reported yesterday by Paige St. John for the Los Angeles Times, when it comes to the controversial police use of genealogical databases to solve cases, there is no uniform approach. “In some departments, they are to be used only as a last resort. Others are putting them at the center of their investigative process. Some, like Orlando, have no policies at all,” St. John writes. “When DNA services were used,” St. John found, “law enforcement generally declined to provide details to the public, including which companies detectives got the match from. The secrecy made it difficult to understand the extent to which privacy was invaded, how many people came under investigation, and what false leads were generated.” Results have not been neutral. “In California, an innocent twin was thrown in jail. In Georgia, a mother was deceived into incriminating her son. In Texas, police met search guidelines by classifying a case as sexual assault but after an arrest only filed charges of burglary.”
Last Friday, the New York Times published a look into the deep disparities between defenders and prosecutors when it comes to digital forensics, evidence that can show that a person was in a completely different location at the time of an alleged crime. Access to digital forensics can mean the difference between exoneration and prison time. But only one office, New York City’s largest public defender, has been able to build a digital forensics lab on par with what law enforcement has.
“Today, one way in which the deck is stacked against defendants involves technology,” Kashmir Hill writes for the Times. “This tech gap has two basic forms. First, law enforcement agencies can use warrants and court orders to compel companies to turn over emails, photos and other communications, but defense lawyers have no such power. And second, the government has access to forensic technology that makes digital investigations easier. Over the last two decades, the machines and software designed to extract data from computers and smartphones were primarily made for and sold to law enforcement.”
Digital forensics can now play a role in virtually any case, because the data inside our Facebook accounts, smartphones and wearable devices contains so much of our day-to-day movements and communications. “The Legal Aid Society’s New York forensic lab is a rarity in the world of public defenders, because most tightly budgeted offices simply can’t afford it,” Hill writes. “The bill for the equipment was approximately $100,000—a fortune in a public defender’s budget, but a small amount by the standards of the Manhattan district attorney’s office, which in 2016 built a forensics lab for $10 million.”
And even when public defender offices can afford to purchase services from private digital forensics companies, they find that some are unwilling to sell to the defense. A public defender who asked a company called Grayshift about sales was told that Grayshift “is tightly controlling the sales and distribution to local, state, and federal government law enforcement end-users only.” StingRays, made by the Harris Corporation, “impersonate cell towers to intercept texts, calls, emails and other data; they can also locate cellphones and thus the people using them.” But until a tech-savvy Californian got curious about how the government had uncovered his tax scam, StingRays were kept entirely secret from the public. Defenders didn’t even know how to start seeking out that data. When Hill sent an inquiry to one digital forensics company about how its products “get used by the defense instead of by law enforcement,” its spokesperson assumed Hill was referring to the military.
Another contributor to the “tech gap” is what seems to be a legitimate oversight in a 1986 law. Just as “electronic mail” was starting to take root, Congress became concerned that traditional privacy protections of Fourth Amendment law might not suffice in the coming digital age, and it passed the Stored Communications Act. The law required law enforcement to take certain steps, such as securing a court order, before it could force companies to share users’ nonpublic content. “But Congress did not account for the possibility that some third parties, particularly those accused of crimes, might need the information for legitimate purposes,” writes Jeffrey D. Stein, a Washington D.C. public defender, in an opinion piece in the Washington Post. “Congress failed to include a provision for third-party subpoenas.”
Although the omission was apparently unintentional, companies such as Facebook and Twitter have repeatedly used the Stored Communications Act to refuse to provide content that could––and in at least one murder case, ultimately did––exonerate innocent people. They have done this in the face of court orders, even after a judge held them in contempt. “In opposing defense subpoenas, attorneys for Facebook have argued that defendants can access content through other routes, for example, by requesting a user’s consent,” Stein writes. “Good luck asking someone to let you review their private social media so you can prove they were the one actually responsible for a crime.”
The disparities between prosecution and defense access to technology are bad enough when data is in the hands of a third party. Disparities are worse when new technologies come on the scene and are handed directly to law enforcement, as was the case with body cameras. By giving the technology to law enforcement, we have transformed it from a tool for police accountability into another tool for police. Even in New York City, a jurisdiction trying to equalize access to non-law enforcement entities such as defenders and oversight boards, the police department still has 30 days to “decide” if body camera footage should be released after an incident.
Gotham Gazette recently reported that “while prosecutors in district attorney offices get full body-worn camera footage directly from the arresting officer following an arrest, police watchdogs often experience significant delays in obtaining video from the NYPD, if the footage is handed over at all.” The NYPD’s guidelines “show the department still doesn’t fundamentally understand the reason for equipping officers with body cameras in the first place,” said Michael Sisitzky, lead policy counsel at the New York Civil Liberties Union. “What this policy does is raise concerns that the NYPD is using body cameras as just another tool to benefit law enforcement, and frame the narrative around critical incidents, rather than producing a full public accounting of its officers’ actions.”