Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As Balkinization readers know well, private companies are collecting immense quantities of sensitive data about us at a scale that threatens individual and societal well-being. So it’s right for privacy law scholars, civil liberties orgs, and policymakers to advocate for better privacy protections. Yet, these well-meaning efforts have overlooked something urgent: the interests of the criminally accused.
To be sure, there is a robust debate about the Fourth Amendment, the third-party doctrine, and statutory privacy protections against government surveillance. That debate is essential to protecting privacy for all of us, including criminal defendants.
But I’m not talking about the privacy interests of the criminally accused. Rather, what we’ve overlooked are the access interests of the criminally accused.
When we think about privacy, technology, and the criminal justice system, we often think of law enforcement investigations. However, criminal defense counsel conduct investigations too. And actually, they’re the only ones who have a duty to investigate evidence of innocence. Yes, that’s right. In the U.S. criminal justice system, law enforcement has zero constitutional, statutory, or formal ethical duty to investigate evidence of innocence. Sure, if law enforcement happens to possess exculpatory evidence, they’re supposed to disclose it to the defense. But neither police nor prosecutors have any obligation to seek out evidence of innocence. That job belongs to defense counsel alone.
The problem is that multiple privacy statutes contain exceptions for law enforcement investigations, but none for defense investigations. That means law enforcement gets access to lots of sensitive information, effectively outsourcing their investigations to private companies, while that same type of information is out of defense counsel’s reach. Given that we rely on law enforcement to investigate guilt, and on defense counsel to investigate innocence, these laws skew criminal investigations by selectively suppressing evidence of innocence.
I call these statutory disparities “privacy asymmetries,” and write about them in a series of forthcoming articles. The first, Privacy Asymmetries, 68 UCLA L. Rev. __ (2021), identifies this problem as a pattern throughout information privacy statutes; explains why the disparities are harmful and unreasonable; and recommends ways that legislators should avoid enacting them unintentionally. The second, Privacy as Privilege, 134 Harv. L. Rev. __ (2021), looks specifically at the Stored Communications Act—a key data privacy law for the Internet—and draws on Evidence Law to argue that courts should reinterpret that statute to stop blocking criminal defense subpoenas. The third is an essay for the recent Data and Democracy Symposium hosted by the Knight First Amendment Institute and Yale LPE Project, and it considers the issue transnationally, addressing cross-border data flows.