Privacy As Privilege: The Stored Communications Act and Internet Evidence

Wexler, Rebecca

doi:10.2139/ssrn.3673403

Cited by 2 publications

(2 citation statements)

References 41 publications

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“…The same is true for fingerprint [47] and face matching databases [79]. Judges have interpreted federal law to make private sector digital communications content databases available to law enforcement but categorically barred to the defense [124]. We argue that these access limitations should be reversed; There are no just reasons to categorically deny defense counsel access to relevant data that they need to investigate forensic evidence in their case.…”

Section: Confronting Structural and Institutional Challengesmentioning

confidence: 99%

Adversarial Scrutiny of Evidentiary Statistical Software

Abebe,

Hardt,

Jin

et al. 2022

Preprint

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The U.S. criminal legal system increasingly relies on software output to convict and incarcerate people. In a large number of cases each year, the government makes these consequential decisions based on evidence from statistical software-such as probabilistic genotyping, environmental audio detection, and toolmark analysis tools-that defense counsel cannot fully cross-examine or scrutinize. This undermines the commitments of the adversarial criminal legal system, which relies on the defense's ability to probe and test the prosecution's case to safeguard individual rights.Responding to this need to adversarially scrutinize output from such software, we propose robust adversarial testing as an audit framework to examine the validity of evidentiary statistical software. We define and operationalize this notion of robust adversarial testing for defense use by drawing on a large body of recent work in robust machine learning and algorithmic fairness. We demonstrate how this framework both standardizes the process for scrutinizing such tools and empowers defense lawyers to examine their validity for instances most relevant to the case at hand. We further discuss existing structural and institutional challenges within the U.S. criminal legal system that may create barriers for implementing this and other such audit frameworks and close with a discussion on policy changes that could help address these concerns.CCS Concepts: • Applied computing → Law; • Computing methodologies → Machine learning; • Software and its engineering;

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Section: Confronting Structural and Institutional Challengesmentioning

confidence: 99%

Adversarial Scrutiny of Evidentiary Statistical Software

Abebe,

Hardt,

Jin

et al. 2022

Preprint

Self Cite

View full text Add to dashboard Cite

show abstract

“…This is in sharp contrast to prosecutors and large private practices who typically have well-equipped digital forensics laboratories to assist with the challenges of the digital turn (Ramirez, 2022). The limited research published on public defenders and digital evidence suggests that they are still learning how to navigate the data deluge, privacy concerns, and evidentiary challenges of the digital turn (Lane et al, 2023;Ramirez, 2022;Wexler, 2021). More research is needed to understand how the rise of digital evidence has changed public defenders' day-to-day work practices and attorney-client dynamics.…”

Section: Introductionmentioning

confidence: 98%

Interpretive and Interpersonal Challenges of Digital Evidence for Public Defenders

Ramirez

2023

hct

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This study uses an ethnography of a large public defender office in the U.S. to argue that the rise of digital evidence is a communication phenomenon that brings new evidentiary interpretation and interpersonal challenges for public defenders and their low socioeconomic status clients. The study’s theoretical framework draws on communication privacy management theory, context collapse, sensemaking, and sensegiving. Findings holistically show that public defenders now have to engage in collaborative interpretive work with clients to unpack the meaning and context of digital evidence. Content penned by young clients and communications related to domestic violence cases are especially challenging to interpret. Findings also show that access to highly personal data is a double-edged sword for attorney-client interactions in that it can cause feelings of discomfort for attorneys while also holding the potential to humanize clients.

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Privacy As Privilege: The Stored Communications Act and Internet Evidence

Cited by 2 publications

References 41 publications

Adversarial Scrutiny of Evidentiary Statistical Software

Adversarial Scrutiny of Evidentiary Statistical Software

Interpretive and Interpersonal Challenges of Digital Evidence for Public Defenders

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