Court Tells Government It Can't Hide Behind Its Third-Party DNA Analysis Vendor To Withhold Evidence

from the time-to-play-fair,-g-men dept

The government says we have no right to access information about its law enforcement "means and methods." To give these secrets away is to instigate a criminal apocalypse.

That's the argument the government has made to protect everything from sketchy confidential informant testimony to Stingray devices. Even when the public has a pretty good idea about what's going on, the government still argues the public can't be trusted. Stingrays aren't a big secret anymore. And confidential informants are only trustworthy until the government decides they aren't and starts feeding them to the criminal justice system.

The government has obligations to the public. Court cases have a presumption of openness -- what happens there can be accessed by everyone. To dodge this, the government seals cases and demands ex parte hearings that cut the defense side out of the equation.

The government also avails itself of a number of private contractors. The government is big enough it can't do everything by itself. And it doesn't hurt that its contracts with private companies help keep some of its questionable activities out of the public eye.

Ask a private company to do your dirty work and you can fend off judges and presumptions of transparency. Add law enforcement "means and methods" arguments to claims about trade secrets and you can wield the private sector against the public for as long as possible.

For the most part this process works. Every so often a federal judge kicks back, prompting everyone involved to come up with better arguments as to why defendants shouldn't be allowed to take a deep look at the evidence being used against them.

Government agencies have ditched cases when defendants have asked about cell tower spoofers or forensic software used to generate evidence against them. But they only do this when courts have decided the people whose life and liberty are at stake deserve answers.

If a court doesn't act to intercede, the government will continue to wield the private sector against the public sector. In cases where proprietary software is involved, the government will allow private companies to assert that giving defendants a chance at a fair trial would undercut the contractors' ability to turn a profit.

When these private entities intercede, they're asking the courts to declare it's more important for these companies to remain viable than allow Americans to fully exercise their rights.

Fortunately, courts haven't always been sympathetic to the arguments the government has raised on behalf of its private contractors. One of the more frequent private intercessors have been DNA companies who argue that revealing their algorithms would cause the collapse of the private DNA-sequencing industry… starting with those who have aided the government the most.

Not true, says at least one federal court. In at least one case involving DNA evidence, a federal court has said hiding behind trade secrets and confidentiality agreements doesn't serve the public. If the government wants to use evidence derived from proprietary software, it had better be ready to share that software with the person it's accusing of criminal acts.

The EFF's intercession into another case involving DNA software and government/private sector secrecy has paid off for the defendant. The basic tenets of due process say criminal defendants must have access to the evidence used against them. Private contractors like Cybergenetics -- which is hoping to shield its "trade secrets" -- are subject to the same discovery rules that affect the government.

A short ruling [PDF] issued by a Pennsylvania federal court says private contractors working with the government are obligated to hand over information to criminal defendants.

The court resists the government's resistance:

The Government resists disclosure of the source code on grounds that Cybergenetics considers it a trade secret, and that disclosure is not necessary. The Court has considered the present record, including the amicus submission made on Defendant’s behalf and Dr. Perlin’s declaration. Here, there can be no dispute that the DNA evidence is central to the case against Defendant.

And if it's central, it must be disclosed:

Based on all applicable factors and considerations previously identified in my January 21 Order, Paragraph 5)2c of the Amended Subpoena Schedule, attached as Exhibit 2 to Docket No. 73, will not be quashed.

There are some limitations -- like the possible deployment of a protective order that will shield this info (at least temporarily) from public view. But the overriding presumption is transparency. If the government wants to use evidence derived from a private company's DNA analysis, it has an obligation to let the defendant examine it. The company's concerns about its proprietary calculations ultimately makes no difference. If it wants to work with the government, it needs to be prepared to hand over this info to criminal defendants.

We'll have to see where it goes from here, but this ruling makes it clear private contractors are considered public when they choose to do business with public agencies. To rule otherwise is to allow the government to have its evidence and hide it too. That's not how America works.

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Filed Under: dna, due process, evidence


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  • icon
    That Anonymous Coward (profile), 3 Mar 2021 @ 2:51pm

    But we can;t tell you how we know he is guilty you just have to believe us!!!

    (slides a box of repainted tiger repelling rocks back under the desk)

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

  • identicon
    Anonymous Coward, 3 Mar 2021 @ 6:24pm

    scrambles madly to re-write good and scientifically valid code, edit code comments

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

  • identicon
    Anonymous Coward, 3 Mar 2021 @ 8:02pm

    This is one of those seemingly-rare places where the basic principles of law and those of science lead to the same conclusion.

    But the principles of science are more fundamental. If you can't show me how to replicate your result, IT IS NOT SCIENTIFIC--it is merely anecdotal at its rarest best, not-infrequently simple mendacity or subtle deceit, witchdoctery at its usual worst.

    A person grounded in reality would insist that the prosecution show how to replicate their results--knowing that otherwise, it is no more valid than some totally ignorant stranger's unsupported opinion. That is not a line of thinking that comes naturally to many lawyers--their whole practice is persuading a juror of just that.

    A real scientist or engineer would be eager to show how his experiment worked. A quack (Elizabeth Holmes, are you out there?) hides behind "proprietary secret." You can tell when the lawyers/MBAs take over an engineering enterprise by the secrets they keep.

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

  • icon
    That Anonymous Coward (profile), 4 Mar 2021 @ 3:13am

    Something something same thing over & over...

    No you can not see how the magic box determines how drunk you are from a breath sample.
    No you can not have it checked for errors.
    Our box is perfect in every way, unless it is not, and we will fight to the end to protect our valuable income.

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

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 3:43am

    Simple solution - set a precedent where the government refuses to supply evidence for a prosecution, so the defendant is allowed to go free AND claim legal costs back AND compensation for time wasted/in prison etc.

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

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 4:31am

    once again the government trying to have it's cake and eat it too.....
    the real question here is, how tasty is that shit cake?

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

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 5:04am

    We have determined the perpetrator is human.
    Now, ladies and gentleman of the jury, The defendant is also Human!
    There can be no doubt that he is human, dna tests prove it, and therefor he must be guilty.

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

  • identicon
    Anonymous Coward, 4 Mar 2021 @ 5:43am

    On a theoretical level, a company refusing to allow discovery on their algorithms could be grounds for sanctions (throwing said 'evidence' out).

    On a practical level, if the defendant cannot muster resources to rebut the algorithm and the evidence - and mind that we're talking both forensic software analysis and DNA science expertise being needed, not exactly common or cheap skills - the DNA analysis company could call the defendant's bluff and agree to reasonable conditions. The only downside for the company would be the prospect of the next case having a defendant that actually has those resources available and having history of agreement.

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


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