Rep. Mark Takano Introduces Bill That Would Keep Companies From Blocking Defendants' Access To Evidence

from the we're-from-the-private-sector-and-we're-here-to-help-violate-your-rights dept

When the government doesn't want to talk about its law enforcement tech, it dismisses cases. The FBI has done this on several occasions. First, it told local law enforcement to dismiss cases rather than discuss Stingray use in court. Then it did the same thing with its homegrown malware in child porn cases.

But the government can't do everything itself. It purchases software and outsources forensic investigation. All well and good except when it comes to prosecutions. Defendants have a right to access the evidence being used against them. But in court cases where third-party tech is in play, private companies are inserting themselves into the proceedings to demand the courts protect their "trade secrets."

Obviously, this makes a mockery of the adversarial system. If defendants can't challenge the evidence being used against them, the government will be encouraged to stack the deck in its favor by offshoring as much of its forensic and investigative work as possible.

Fortunately, someone is actually trying to do something about this. Rep. Mark Takano (California) is introducing a bill that would prevent tech companies from helping the federal government screw criminal defendants out of their Constitutional rights.

Takano's Justice in Forensic Algorithms Act of 2019 was introduced with this rather clever tweet, featuring a bit of pseudo-coding to drive the point home.

If the government is using third-party tech to prosecute citizens, citizens shouldn't be denied access to information just because some company thinks any examination at all might undercut its market advantage.

“The trade secrets privileges of software developers should never trump the due process rights of defendants in the criminal justice system,” said Rep. Mark Takano. “Our criminal justice system is an adversarial system. As part of this adversarial system, defendants are entitled to confront and challenge any evidence used against them. As technological innovations enter our criminal justice system, we need to ensure that they don’t undermine these critical rights. Forensic algorithms are black boxes, and we need to be able to look inside to understand how the software works and to give defendants the ability to challenge them. My legislation will open the black box of forensic algorithms and establish standards that will safeguard our Constitutional right to a fair trial.”

Congress can't force the court to side with defendants in cases where access to third-party software is at stake. But it can prevent companies from invoking trade secret privileges to prevent defendants from accessing evidence. The bill goes further than just blocking trade privilege interjections. It also would create a national standard for forensic algorithms to ensure they are robust and fair. And that they actually do what they say they do.

This process could bring a bit more science to a field that's been mostly mumbo and/or jumbo. And it won't allow law enforcement to create their own forensic black boxes to replace the ones they used to purchase from third parties. It will require input from a number of parties not in the law enforcement profession, ensuring this won't end up being another half-assed effort that shores up the government's belief that all accused parties are guilty until proven guilty.

Directs NIST to establish Computational Forensic Algorithms Standards and a Computational Forensic Algorithms Testing Program and requires federal law enforcement to comply with these standards and testing requirements in their use of forensic algorithms. In developing standards NIST is directed to:

- collaborate with outside experts in forensic science, bioethics, algorithmic discrimination, data privacy, racial justice, criminal justice reform, exonerations, and other relevant areas of expertise identified through public input;

- address the potential for disparate impact across protected classes in standards and testing; and

- gather public input for the development of the standards and testing program and publicly document the resulting standards and testing of software.

This part could take awhile to get up and running. But it's far better than the system currently being used, which has allowed the government's expert forensic witnesses to overstate the certainty of their findings for years on end.

The more immediate effect will be the constraints placed on private companies who wish to intercede in criminal cases. The government -- working with its vendors -- will be obligated to provide defendants with a report on the software used, an executable version of the software itself, and its source code. If companies are worried their trade secrets might be exposed in criminal cases, they might want to rethink their partnerships and decide whether the tradeoffs they have to make in court to continue doing business with the government are worth it.

Filed Under: due process, evidence, fbi, forensics, mark takano, source code


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  • icon
    That One Guy (profile), 25 Sep 2019 @ 6:17pm

    Another entry on 'problems that shouldn't exist' list...

    This really shouldn't be needed, as the government refusing to provide access to how they gathered a particular bit of evidence so the defense can make sure its actually legal should be grounds to have it ruled inadmissible. 'Don't want to provide the defense access to the same evidence that you want to use against them? Then you don't get to use that evidence.'

    Still, it very clearly is needed, and as such here's hoping it can sail through without being hamstrung by the government and companies that would rather keep that sort of information secret even as they still use it.

    reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 25 Sep 2019 @ 6:49pm

    The proof is in the pudding, show the recipe

    They should add a time limit for accomplishing the reviews. In addition, they should make it clear that any algorithm that has not been thoroughly reviewed is ineligible to be used as evidence of any wrongdoing. They should also make it clear that this law is effective to courts at all levels, so that some state prosecutors cannot claim it doesn't apply to them. To do so might require some language that clarifies that trade secrets cannot overcome the 6th Amendment.

    "Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

    While congress may not be able to force judges to side with defendants in cases where access to third-party software is at stake, they can make it illegal for them to allow unreviewable evidence to be presented as the Constitution requires that one be able to face their accusers. Even if it is third party trade privileged software that can't testify for itself, but can be analyzed and refuted by defense experts. And while that could be expensive, it is better than a denial of confrontation.

    reply to this | link to this | view in chronology ]

  • icon
    Gary (profile), 25 Sep 2019 @ 7:26pm

    Corporations vs People

    Hey what could go wrong? If corporations were compelled to show actual evidence? IP addresses aren't evidence so....

    If corporations have no rights under cabbage law, this is a no-brainer!

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Benjamin Albout, 25 Sep 2019 @ 8:22pm

    Isn't workable. Suppose GOOGLE provided web history...

    That was key but disputed -- because IS mere text, so possibly faked. Need not only chain of possession but to ensure that it's not someone else's history! Do you think GOOGLE is going to open up its code and precious algorithm?

    Of course not. Similar for other companies.

    Besides that, it'd be possible for competitors to easily get source code. No way to prevent it. At worst, have to arrange for a person to commit a crime, or could offer "free" technical help to defense, bypassing all restrictions since no defendant could be expected to grasp source code.

    Also, though not stated here: the same would likely have to be applied in civil cases. -- That'd let conservatives who now can't get proof of Silicon Valley's bias get the crown jewels!

    Won't happen. Will never hear of this again even here.

    Technical quibbles are basically silly, anyway, particularly when due to the overwhelming urge of Democrats to make it so that criminals escape justice.

    reply to this | link to this | view in chronology ]

    • icon
      Gary (profile), 25 Sep 2019 @ 8:39pm

      Re: Isn't workable.

      Do you think GOOGLE is going to open up its code

      So... You are saying that Google's code shouldn't be considered "Evidence" in a court?

      And.... What is wrong with that? Yea!

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 25 Sep 2019 @ 8:47pm

      What you call “criminals escap[ing] justice” is what most other people would call “respecting civil rights”.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Sep 2019 @ 8:51pm

      Re:

      Do you think GOOGLE is going to open up its code and precious algorithm

      If it's relevant to the case? The court would compel them to provide it. Isn't that what you've been demanding, your precious proof that your fellow Trump cheerleaders are getting deprioritized?

      it'd be possible for competitors to easily get source code

      Got to love your usual bitching that asking plaintiffs to prove they're not completely full of shit suddenly means that trade secret laws fail to exist.

      At worst, have to arrange for a person to commit a crime, or could offer "free" technical help to defense

      Jhon Smith's "waiters who call women hookers" strategy strikes again!

      bypassing all restrictions since no defendant could be expected to grasp source code

      Again... why would this be relevant at all? If you're that terrified of a "poisoned" source code guy, that's why you ask the court to find a neutral third-party expert. Do you seriously think defendants who don't understand source code have the resources to poison every possible expert you could find?

      the same would likely have to be applied in civil cases

      Don't worry your pretty little head, civil standards for evidence are still likely to be trash. Which is why you insist on having all your copyright cases held there...

      Technical quibbles are basically silly

      Because they expose the tissue paper with pencil-scrawled numbers you use for IP address evidence for the bumfodder it actually is. How's that Lincoln Bandlow defense fund coming along bro?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Sep 2019 @ 9:51am

        Re: Re:

        Never mind that there have been court cases where outside experts have reviewed software source code before. (The Toyota unintended acceleration lawsuit, for one.)

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 26 Sep 2019 @ 5:46pm

          Re: Re: Re:

          It's almost like blue boy's claims all crumble like a torn condom in a hurricane when given light scrutiny. I'm shocked I tell you, shocked!

          reply to this | link to this | view in chronology ]

    • identicon
      stine, 25 Sep 2019 @ 8:52pm

      Re: Isn't workable. Suppose GOOGLE provided web history...

      I suggest you google the legal term 'in camera', and then try again.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 25 Sep 2019 @ 9:24pm

      Re: Isn't workable. Suppose GOOGLE provided web history...

      Remembering to cut out the words "Lorem Ipsum" from the beginning doesn't make your source any less obvious.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Sep 2019 @ 5:49am

      Re: Isn't workable. Suppose GOOGLE provided web history...

      All suspects are considered innocent until proven guilty in a court of law. If that is too much for you to understand, you shouldn't be commenting on things you clearly don't understand. Your being flagged is a sign of your mental problems, not the community banding together to silence you btw.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 26 Sep 2019 @ 5:49pm

      Re: Isn't workable. Suppose GOOGLE provided web history...

      Do you think GOOGLE is going to open up its code and precious algorithm?

      Can you highlight for me which courts use Google's algorithms as evidence for prosecution? Because, damn, that would be interesting. But, as far as I know, they don't -- so not sure what Google has to do with anything here, other than as a strawman for you.

      reply to this | link to this | view in chronology ]

  • identicon
    spodula, 26 Sep 2019 @ 1:06am

    But surely...

    Law enforcement shouldnt be buying technologies that they cant use in court anyway?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Sep 2019 @ 2:34am

      Re: But surely...

      I'm pretty sure a lot of tech usage in law enforcement is predicated on the hopeful ideal that judges would never question them.

      Dick Figures Episode #19 is starting to look much less of a parody and more of a documentary...

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Sep 2019 @ 5:08am

    Not just Algorithms...

    Expert Knowledge is also overstated:

    • Bite mark testimony (just don't go there)
    • Fingerprint matching (How well did that work for Brandon Mayfield?)
    • Dare I say it? Positive matching on DNA. (Eliminating someone as a suspect, sure. Positively identifying someone? A lot harder, a lot more glossed over.)

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 26 Sep 2019 @ 8:04am

    I wonder...

    If you weren't allowed to review the code of a program used against you as evidence, could you get a subpeona for the people that put the program together and question them about it?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 27 Sep 2019 @ 10:55am

      Re: I wonder...

      Even if you could it wouldn't likely do you much good, as without the code to reference any questions would be completely blind, and judges probably wouldn't be to happy to allow a game of 200 questions mid-court as you tried to zero in on the relevant parts.

      reply to this | link to this | view in chronology ]


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