Op-Ed: How data privacy laws could make the criminal justice system even more unfair

A cluster of new and proposed state and federal laws will soon make it harder for people accused of crimes to defend themselves. All of these laws are well-intended — to protect privacy by shielding sensitive personal information — but they suffer from a fundamental unfairness that needs correction.

These laws tilt the scale in favor of the prosecution by giving police access to lots of useful data while putting critical information out of defendants’ reach.

Social media messages, photo metadata, Amazon Echo recordings, smart water meter data, and Fitbit readings 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, or a witness is lying, or someone else is guilty of the crime.

The California Consumer Privacy Act, which was approved in 2018, allows law enforcement officers to obtain data from technology companies and prohibit those companies from immediately notifying the person they are investigating. Such delayed notice may be necessary to investigate someone who is dangerous or likely to destroy evidence or flee. But the law does not give defense investigators the same right to delay notification to witnesses or others — who might well pose a threat to the defendant — when they subpoena data from tech companies as part of the defense’s case. Legislators need to amend the law to fix this flaw by the Sept. 13 deadline for making final changes to the statute.

The New York Privacy Act, introduced on May 9, would create the same unfair disparity. So would various federal bills proposed by Sens. Ron Wyden (D-Ore.), Edward J. Markey (D-Mass.), Richard Blumenthal (D-Conn.), Amy Klobuchar (D-Minn.), and John Kennedy (R-La.). Other pending federal bills would bar defendants from getting certain data from technology companies at all.

We’re finally having a long overdue debate about digital privacy, and the legislative efforts underway in the states and in Congress are promising. But if these bills become law as currently proposed, they would deepen existing imbalances that are unfair to criminal defendants.

On Friday, a San Francisco judge held Facebook and Twitter in contempt for refusing to disclose evidence to a defendant, Lee Sullivan, who is facing trial in connection with a drive-by murder. The only witness placing Sullivan at the scene is his ex-girlfriend, who rented the car for the drive-by shooting, was arrested driving it moments after, and didn’t mention Sullivan until she was threatened with prosecution, according to court briefs. The defense has sought from Facebook and Twitter private messages from the ex-girlfriend’s accounts, but the companies say a federal data privacy law from 1986 prevents them from disclosing those messages.

Or consider the case of Ravanell Young, also in California. Young was charged with shooting at an SUV. Someone associated with the SUV had previously shot at Young, then used an Instagram account to harass, threaten and stalk him for months, keeping him “in constant fear for his life,� according to court documents filed by Young’s lawyer. But when Young tried to get the Instagram messages to show he acted in self-defense, Instagram said it was barred from disclosing those messages because of the 1986 electronic privacy law.

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.

Protecting consumers’ data privacy is critically important, but it should not be at the cost of making an unfair criminal system even less fair.

Rebecca Wexler is an assistant professor of law at the UC Berkeley School of Law and an affiliated fellow at the Yale Law School Information Society Project.