How Privacy Laws Hurt Defendants

Rebecca Wexler has an interesting op-ed about an inadvertent harm that privacy laws can cause: while law enforcement can often access third-party data to aid in prosecution, the accused don't have the same level of access to aid in their defense:

The proposed privacy laws would make this situation worse. Lawmakers may not have set out to make the criminal process even more unfair, but the unjust result is not surprising. When lawmakers propose privacy bills to protect sensitive information, law enforcement agencies lobby for exceptions so they can continue to access the information. Few lobby for the accused to have similar rights. Just as the privacy interests of poor, minority and heavily policed communities are often ignored in the lawmaking process, so too are the interests of criminal defendants, many from those same communities.

In criminal cases, both the prosecution and the accused have a right to subpoena evidence so that juries can hear both sides of the case. The new privacy bills need to ensure that law enforcement and defense investigators operate under the same rules when they subpoena digital data. If lawmakers believe otherwise, they should have to explain and justify that view.

For more detail, see her paper.

Posted on August 2, 2019 at 6:04 AM • 14 Comments

Comments

David RudlingAugust 2, 2019 8:18 AM

An excellent contribution to the debate - and another reason why there can be NO exceptions for allowing access to secured information.

JonKnowsNothingAugust 2, 2019 8:53 AM

While it would be hoped that the digital path would work-as-intended, the current state of data exchange aka discovery is known to be faulty with No Data Found when a request is made.

This is possible due to the constant re-definition games played (eg: Relevant means All). The opposing side simply renames the item(s) and when the "specified search" is done returns zero.

The cases were data is withheld and only later, many years later, or decades later are revealed are legion.

There is no way for an individual to surpass the power of the state. There is not way to compel the state to reveal anything. There is no way to enforce a bi-directional equal exchange. The State Wins.

In the USA, prosecutors are elected. They have to get votes to get into office. Their primary campaign messages are about How Tough On Crime they are and the percentage of convictions. Especially inflammatory rhetoric about the number of convictions where the case involves "despicable acts".

Some Judges in the USA are also elected although often unopposed. Again they have to campaign that they are Tough On Crime.

There isn't anything there that guarantees an equal exchange.

There isn't anything that is gathered digitally that guarantees and equal exchange from any party that archives such data. In individual has no possible means of discovering data held in City, County, State, Federal or International digital archives. The same is true for all private companies, from Repo Tow Trucks with License Plate Readers to your local mall with their surveillance systems.

When they say there isn't any data, that doesn't mean it isn't there.


Wilhelm TellAugust 2, 2019 9:54 AM

Just one more step is needed to achieve the Soviet Union system: Any attorney defending the defendant automatically gets jail sentence for supporting criminal activity.

65535August 2, 2019 10:40 AM

The headline should read "How Cleverly Misnamed Privacy laws are actually Anti-Privacy Laws - hurt Defendants"

It's more of the same old "One-way Way Mirror" trick where the government can see everything you and I do and the citizens cannot see what the government is doing - or police are doing. The headline is pure misdirection.

I will say the deceptively clever wording of the "LA Times Op-ed" is not unusual.

The political game of renaming "Privacy" as "Anti-privacy" is Standard Operating Procedure of almost all modern politics in the larger South West boarder state. ..The huge must campaign in voting state with the smartest political PR firms in the business ... and their outright deception are common - name proposed new laws the exact opposite of their actual text - turning wrong in to right or good into bad.

Headline: Privacy Laws are Unfair... [bad]" LA Times

[A head fake and then a bit of truth]

'"California Consumer Privacy Act" [Police Snooping Act] ...allows law enforcement officers to obtain data from technology companies and prohibit those companies from immediately notifying the person they are investigating... the law does not give defense investigators the same right to delay notification to witnesses..."' -LA Times Op-ed

That law is the Opposite of "Consumer Privacy" and is essentially a law allowing Police and others in government to Spy on citizens. That is the whole aim of said misnamed "Consumer Privacy" law.

The article does indicate that California is one of the heaviest data harvesters and employer of Spies

"... giving police access to lots of useful data while putting critical information out of defendants’ reach... [That maybe true]" -LA Times

"Social media messages" [Google Facebook and so on]

"photo metadata" [Google to Palantir Technologies is [supported by ICE and other Three Letter agecies -ed] ... a company that specializes in big data analytics. Headquartered in Palo Alto, California, it was founded by Peter Thiel ht tps://en.wikipedia.org/wiki/Palantir_Technologies ]

"Amazon Echo recordings" [Not to mention the leaky Amazon Cloud and the Capital One data theft of 100 million credit records ht tps://krebsonsecurity.com/2019/07/capital-one-data-theft-impacts-106m-people - links broken to hamper bots]

"smart water meter" data [The "Smart Meter" with the ability to show when a person is at home and to confuse the consumer regarding excessive charges on her/his monthly bill - look up Clive Robinsons posts for that putrid "Smart Meter" spying scam],

"Fitbit" readings [and on and on]

"...have all been used in criminal cases. The new laws would limit how defendants can access this key evidence, making it difficult or impossible for defendants to show they acted in self-defense..." -LA times

[Mixing Facts and with a False headling]

To be clear the proposed "California Consumer Privacy" laws is really a huge "Snoopers Charter" designed to allow police complete access to all citizens private data - except the police officers private data... and a huge revenue stream form Google, Facebook Amazon, and most all of Silicon Valley.

I don't buy it and I don't like it. Don't believe any headline out of the LA Times without adding a grain of salt [skepticism].

A word of caution, if you give the LA Time five minutes of your time they will waste it - or lie to you. That is politics in the South West boarder state.

IsmarAugust 2, 2019 11:12 AM

“The new privacy bills need to ensure that law enforcement and defense investigators operate under the same rules when they subpoena digital data. If lawmakers believe otherwise, they should have to explain and justify that view”

Absolutely crucial if we want to have any pretence of a functional democracy left in the USA

Ergo SumAugust 2, 2019 11:19 AM

The Ring cameras, owned by Amazon, are even a larger privacy risk. The US police departments advertise the Ring cameras and Amazon in return provide them access to the camera and some free hardware:

https://www.engadget.com/2019/07/25/amazon-ring-police-partnerships/

My neighbor has one, pointing right at my house across the street. I do object to having that camera record my movement, but really cannot do much about it. No, talking to the neighbor did not help. Maybe pointing the laser at the camera would break it, but that's probably not a good idea...

Denton ScratchAugust 2, 2019 11:42 AM

A number of serious rape convictions in the UK have recently been vacated on appeal, on the grounds that the Crown Prosecution Service failed to disclose material found on mobile devices that would have been of significant help to the defence. That is, the CPS bears the burden of mining the device data for all evidence that might help *either* the prosecution or the defence. The police burden is simply to obtain all that data.

This is now supposedly causing problems in bringing rape prosecutions; a number of convictions have been overturned on appeal because the CPS failed to hand-over evidence that would have helped the defence. Bear in mind that in most criminal cases, it is the CPS that decides whether to prosecute, and provides the prosecution lawyers.

Police are apparently now refusing to investigate unless the purported victim unlocks their phone for them. Understandably, said purported victim doesn't want to have their life placed in the hands of an agency that loves holding press conferences naming the "perps", in cases in which no charge has even been brought yet (I want this practice banned).

During Operation Midland, an investigation into a paedophile ring supposedly involving senior politicians and other VIPs, the allegations of the pseudonymous complainant were described at a press conference by Det Supt Kenny McDonald, the head of the investigation, as "credible, and true". No point in holding a trial then, I guess.

I believe this was a response to complaints that police frequently dismissed the accusations made by child-abuse victims, and declined to investigate. In response to these complaints, a new policy was instituted that complainants should be given the benefit of the doubt by police. I think McDonald was trying to show that the new policy was silly. In fact it is he that now looks silly: the pseudonymous accuser, now exposed as Carl Beech, has received an 18-year sentence for fraud and perverting the course of justice.

vas pupAugust 2, 2019 2:45 PM

Related to tag: Law Enforcement.

German law would allow police to use DNA to identify suspects:
https://www.dw.com/en/german-law-would-allow-police-to-use-dna-to-identify-suspects/a-49857599

"Police in Germany may soon be able to use DNA to build a more detailed picture of wanted fugitives. Under a new proposed law, authorities could be allowed to identify a suspect's age as well as skin color.

Germany's Justice Ministry has proposed a bill that would permit police to use DNA analysis to determine characteristics that are currently off-limits, such as a suspect's age and the color of their skin, eyes and hair.

The planned changes were reported by the Funke Media Group and the German press agency dpa on Thursday.

Under current laws, police can only use collected genetic samples — for example, hair, skin cells or blood droplets from a crime scene — to test for an unknown individual's gender, or to search for a match in a DNA database."

My take: three good videos inside the article. The results has probability, and some discovered features should be used not as evidence in the court, but rather
for criminal intelligence. And, as all evidence should be taken in cluster only.
None of the evidence alone has overwhelming weight.

Petre Peter August 3, 2019 7:10 AM

It seems like it doesn't even matter what the truth is; what matters is if we believe it.

JonKnowsNothingAugust 3, 2019 10:31 AM

@Petre Peter

It seems like it doesn't even matter what the truth is; what matters is if we believe it.

Interesting view point.

  • Truth is in the eye of the beholder.
  • Truth is written by the victors.
  • Truth changes over time.
  • The False comes the True and the True becomes the False.
  • If you say it often enough or loud enough it becomes True.
  • If you speak louder than anyone else your view becomes The View.
  • Truth and Honor becomes Lies and Deceits
  • Trust implies Truth


All of these (and more) certainly play a part in how we perceive reality and what we think reality is. The biggest problem humans have is that we cannot ever know what the other person actually sees. We agree on verbal constructs but we never can know what individually we see.

Is the red balloon really a red balloon to everyone? We can agree that "this object" is called a red balloon but I may not see a round object reflecting the red spectrum floating in the air. What I see I may call a red balloon because we agreed to that. I may think you see a square object sitting on the ground reflecting violet spectrum and the string standing on end because that's what you told me you call a red balloon.

Human freedoms depend on what we do and do not see or what we chose to not see.

vas pupAugust 3, 2019 2:20 PM

@JonKnowsNothing:
You do have very interesting points.
To your statement "•Truth is in the eye of the beholder." and related input: "The biggest problem humans have is that we cannot ever know what the other person actually sees."

Yeah, that is right. E.g. you see the statute of man on the horse from the front and have one TRUE vision, but I see the same statue from the back, and have also TRUE vision.

If we try to argue who has true vision, then be both have zero chance to prove it with facts. Same in many political, social, etc. debates. Each side has own vision, but that vision is one-sided. Now, it is up to you, do you want to find truth and consider merits of other angles of view, and developed new synthetic vision incorporating other view based on facts and logic provided, OR you take the position that you have crystal ball and as result you view is only one truth which is possible.

In ancient world in any argument they want to listen to the other side. That is why court has prosecutor and defense lawyer as attempt to provide balance of facts presentation.

At the end of the day, truth should never be defined by number of people sharing the idea,
access to loudspeakers/media, emotions which may have nothing to do with facts.

Regarding media, more INDEPENDENT of each other sources of information you have (and possibly with opposite points) the better chance you have to analyze their input by your own head looking for overlapping area which could point to the truth with higher probability. Use both eyes, both ears, both hemispheres of YOUR brain in a process.

JonKnowsNothingAugust 3, 2019 3:30 PM

@vas pup

I have certainly changed views many times. It is a privilege that humans get to alter our views opinions and policies

Recently I had the opportunity to learn something totally new to me about the USA. So much history (all history) is glossed over and lost.

During the period when what was our country, England, was putting taxes on the colonies to pay for the King's wars on the Continent, 6 members of parliament stood up for the colonials and argued to remove the taxes. Six against all of the King's Men. Has those 6 been listened to and the taxes rescinded we might still be part of the UK or Canada.

One voice or Six can make all the difference.

William Pitt, 1st Earl of Chatham
Charles Pratt, 1st Earl Camden
Isaac Barré
Edmund Burke
John Wilkes
John Glynn


ht tps://en.wikipedia.org/wiki/Isaac_Barr%C3%A9

A vigorous opponent of the taxation of America, Barré displayed his mastery of invective in his championship of the American cause, and the name "Sons of Liberty", which he had applied to the colonists in one of his speeches, became a common designation of American organizations directed against the Stamp Act, as well as later patriotic clubs.

Barré's knowledge of North America (he was one of the few politicians with friendships among the American mercantile classes) made him a champion of the colonists, whom he famously dubbed "Sons of Liberty" while opposing the intended Stamp Act, which nevertheless passed on 6 February 1765. An example of his fiery oratory was his response to Charles Townshend's observation when introducing the Stamp Act resolutions that the colonies should "contribute to the mother country which had planted, nurtured and indulged them" , to which he replied:

They planted by your care! No, your oppressions planted them in America. They fled from your tyranny to a then uncultivated, inhospitable country, where they exposed themselves to almost all the hardships to which human nature is liable, and among others to the cruelties of a savage foe and actuated by principles of true English liberties, they met all hardships with pleasure compared with those they suffered in their own country from the hands of those who should be their friends.

TedAugust 4, 2019 4:35 AM

@JonKNowsNothing wrote, "During the period when what was our country, England, was putting taxes on the colonies to pay for the King's wars on the Continent, 6 members of parliament stood up for the colonials and argued to remove the taxes. Six against all of the King's Men. Has those 6 been listened to and the taxes rescinded we might still be part of the UK or Canada."

Ironically, we've been brainwashed to think more taxes is good, as the "liberal minded" portion of our population cries out for heavier taxes not less.

This is particularly interesting to see how MSM is able to swap people's minds with such ease.

pjtAugust 4, 2019 1:08 PM

priivacy laws with data subject rights baked in to their rules can neutralize this threat, no?

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