Rep. Takano Introduces the Justice in Forensic Algorithms Act to Protect Defendants’ Due Process Rights in the Criminal Justice System
Washington, D.C. – Today, Rep. Mark Takano (D-Calif.) introduced the Justice in Forensic Algorithms Act of 2019 to ensure that defendants have access to source code and other information necessary to exercise their confrontational and due process rights when algorithms are used to analyze evidence in their case. This legislation will also establish standards and testing to enable a robust conversation about how these algorithms work and whether they are accurate and fair enough to be used in the criminal justice system.
“The trade secrets privileges of software developers should never trump the due process rights of defendants in the criminal justice system,” said Rep. Mark Takano. “Our criminal justice system is an adversarial system. As part of this adversarial system, defendants are entitled to confront and challenge any evidence used against them. As technological innovations enter our criminal justice system, we need to ensure that they don’t undermine these critical rights. Forensic algorithms are black boxes, and we need to be able to look inside to understand how the software works and to give defendants the ability to challenge them. My legislation will open the black box of forensic algorithms and establish standards that will safeguard our Constitutional right to a fair trial.”
Across the country, law enforcement agencies are increasingly using a new type of software to partially automate the analysis and interpretation of evidence in criminal investigations and trials. These forensic algorithms have been used in thousands of criminal cases across the United States over the last decade to analyze everything from degraded DNA samples and faces in crime scene photosto gunshots and online file sharing. People are being convicted based on the results of these potentially flawed forensic algorithms without the ability to challenge this evidence due to the intellectual property interests of the software’s developers.
Only the developers know how these algorithms work. Judges consistently side with developers and defendants are being denied the ability to challenge the evidence used against them and evaluate how these algorithms work because of the developers’ trade secret protections. This presents a threat to due process rights and violates the confrontation rights guaranteed for defendants in the Constitution’s Bill of Rights, as well as in federal, local, and state law. TheJustice in Forensic Algorithms Act protects due process rights by prohibiting the use of trade secrets privileges to prevent defendants from challenging the evidence used against them.
There is still much to learn about how effective and trustworthy forensic algorithms really are. A case in upstate New York, where two different probabilistic genotyping programs were used to analyze the same sample demonstrates this subjectivity, one program found a match to the suspect and one said there was no match. These inconsistencies point to the need for greater transparency and understanding of the subjective human decisions involved when this software is being built and used. To address this, the Justice in Forensic Algorithms Act directs the National Institute of Standards and Technology (NIST) to establish Computational Forensic Algorithms Standards and a Computational Forensic Algorithms Testing program that federal law enforcement must comply with when using forensic algorithms. By establishing these standards and testing programs, defendants will have access to more information when evaluating the evidence used against them during a criminal proceeding.
Background on the legislation:
The Justice in Forensic Algorithms Act opens the black box of forensic algorithms by prohibiting the use of trade secrets privileges to prevent defense access to evidence in criminal proceedings and directing the National Institute of Standards a Technology to establish Computational Forensic Algorithms standards and testing. The bill:
- Ensures defense access by amending the Federal Rules of Evidence to prohibit the use of trade secrets privileges to prevent defense access to evidence they would otherwise be entitled to. Defendants will also receive a report on what software was used in their case and have access to the software so that they can test and reproduce the analysis.
- Directs NIST to establish Computational Forensic Algorithms Standards and a Computational Forensic Algorithms Testing Program and requires federal law enforcement to comply with these standards and testing requirements in their use of forensic algorithms. In developing standards NIST is directed to:
- collaborate with outside experts in forensic science, bioethics, algorithmic discrimination, data privacy, racial justice, criminal justice reform, exonerations, and other relevant areas of expertise identified through public input;
- address the potential for disparate impact across protected classes in standards and testing; and
- gather public input for the development of the standards and testing program and publicly document the resulting standards and testing of software.
- Requires Federal law enforcement agencies to comply with standards and testing requirements in their use of forensic algorithms.
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