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.