Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System.

• Author: Wexler, Rebecca

Abstract. The criminal justice system is becoming automated. At every stage, from policing to evidence to parole, machine learning and other computer systems guide outcomes. Widespread debates over the pros and cons of these technologies have overlooked a crucial issue: ownership. Developers often claim that details about how their tools work are trade secrets and refuse to disclose that information to criminal defendants or their attorneys. The introduction of intellectual property claims into the criminal justice system raises undertheorized tensions between life, liberty, and property interests.

This Article offers the first wide-ranging account of trade secret evidence in criminal cases and develops a framework to address the problems that result. In sharp contrast to the general view among trial courts, legislatures, and scholars alike, this Article argues that trade secrets should not be privileged in criminal proceedings. A criminal trade secret privilege is a historical, harmful to defendants, and unnecessary to protect the interests of the secret holder. Meanwhile, compared to substantive trade secret law, the privilege overprotects intellectual property. Further, privileging trade secrets in criminal proceedings fails to serve the theoretical purposes behind either trade secret law or privilege law. The trade secret inquiry sheds new light on how evidence rules do, and should, function differently in civil and criminal cases.

Introduction I. Trade Secrets in the Criminal Justice System A. Evidence of Guilt at Trial B. Pretrial Suppression Hearings C. Bail and Sentencing D. Arguments Favoring Secrecy II. Histories of the Trade Secret Privilege A. The Civil Trade Secret Privilege 1. Debates over the existence of the privilege 2. The Wigmore-Hand duel B. The Criminal Trade Secret Privilege III. Law and Consequences of the Trade Secret Privilege A. The Trade Secret Privilege Is Harmful in Criminal Cases 1. Overclaiming 2. Raising the burden 3. Balancing procedural justice B. The Trade Secret Privilege Is Unnecessary in Criminal Cases 1. Discovery 2. Subpoenas 3. Protective orders, sealing, and courtroom closures C. The Trade Secret Privilege Overprotects Intellectual Property 1. Substantive trade secret law, compared 2. The purposes of trade secret law 3. Innovation concerns D. The Scope and Purpose of Privilege Law 1. Judicial authority and a criminal trade secret privilege 2. Sensitive information inside and outside the courts 3. Differential incentives Conclusion Introduction

A death penalty defendant in Pennsylvania state court was denied access to the source code for a forensic software program that generated the critical evidence against him; the program's commercial vendor argued that the code is a trade secret. (1) In a federal court in Texas, the federal government claimed that trade secret interests should shield details about how a cybercrime investigative software program operates, even though the information was necessary to determine whether warrantless use of the tool had violated the Fourth Amendment. (2) And in a Wisconsin case, the state supreme court rejected a defendant's claim that he had a right to scrutinize alleged trade secrets in an algorithmic risk assessment instrument used to sentence him. (3) The court reasoned that no due process violation had occurred in part because the judge's own access to the secrets was equally limited. (4)

Cases like these herald a growing trend. Criminal justice decisionmaking is becoming automated. At every stage--policing and investigations, pretrial incarceration, assessing evidence of guilt at trial, sentencing, and parole-machine learning systems and other software programs increasingly guide criminal justice outcomes. (5) Predictive policing technologies identify "hot spot" neighborhoods. (6) Social media analytics flag at-risk individuals. (7) Forensic scientists use software programs to analyze crime scene evidence, including DNA, (8) fingerprints, (9) ballistics, (10) and face matches. (11) And judges and parole boards rely on risk assessment instruments, which purport to predict an individual's future behavior, to decide who will make bail or parole and even what sentence to impose. (12)

Widespread debates over automated criminal justice technologies have focused on whether data-driven systems enhance accuracy, objectivity, and transparency in decisions that would otherwise be made by humans, (13) or whether these same systems in fact exacerbate errors, bias, and opacity, (14) while making such decisions merely appear more scientific. (15) Risk assessment instruments are among the most controversial. (16) Advocates claim that these systems can reduce mass incarceration without endangering public safety by identifying low-risk individuals for release. (17) Critics argue that the tools risk reinstating past biases by relying on historical data to make future predictions. (18) Similar hopes and concerns attend automated systems that allocate police resources. (19) And software programs used to analyze evidence of guilt have likewise elicited dispute over their reliability and contestability. (20)

These debates are urgent, but they are also incomplete. They have failed to appreciate a crucial issue: ownership. Automation is intensifying the privatization of the justice system. In recent years, private prisons have been found to undermaintain safety and security (21) and private police have been found to operate with minimal training and oversight. (22) The emerging criminal justice technologies discussed in this Article are also, for the most part, privately owned. (23) Developers often assert that details about how their tools function are trade secrets. As a result, they claim entitlements to withhold that information from criminal defendants and their attorneys, refusing to comply even with those subpoenas that seek information under a protective order and under seal. (24)

To date, scholars and practitioners have largely overlooked the fact that new technologies entering criminal proceedings are bringing intellectual property claims with them. (25) But conflicts surrounding this trend are likely to multiply. The Defend Trade Secrets Act (DTSA) of 2016 established the first federal cause of action for trade secret misappropriation, (26) while the U.S. Supreme Court's 2014 decision in Alice Corp. v. CLS Bank International made it harder to patent software. (27) Future developers of data-driven systems are therefore likely to depend more heavily on trade secret protections. (28)

This Article documents the introduction of trade secret evidence into criminal cases and develops a framework to address the resulting tensions between life, liberty, and property interests. Specifically, it turns to evidence law to resolve the conflict between transparency and trade secrecy with respect to emerging criminal justice technologies. The intellectual propertization of core aspects of the criminal justice system is hardly an isolated phenomenon. Legal scholars have debated the clash between black-box methods in algorithmic tools and values of transparency and accountability in a wide array of public and private domains. (29) The debate over secrecy and disclosure has touched intelligence surveillance, (30) public infrastructure, (31) commercial activities, (32) healthcare, (33) administrative decisionmaking,34 and to some extent criminal procedure. (35) But the manifestations of these tensions in evidence law have gone almost entirely unexamined. (36) This lack of scrutiny is all the more troubling given that privilege law, which applies to all judicial proceedings including those before trial and after conviction, (37) has remained relevant even as the number of trials has plummeted. (38)

The dearth of scholarly attention has been accompanied by uncritical acceptance of trade secret evidence in criminal cases. Today, the general view among legislators, judges, and scholars alike is that some form of trade secret evidentiary privilege both does and should exist, at least in civil proceedings. At least twenty-one states have codified a trade secret privilege in their evidence rules. (39) Courts in many of the remaining jurisdictions recognize some common law variation of it. (40) A few scholars have taken a measured approach. Kenneth Graham Jr. calls the privilege "controversial," (41) observing that mid-twentieth century authorities "all seem to have thought that there was no privilege for trade secrets," though courts had equitable discretion to protect against undue disclosures in litigation. (42) But much existing literature treats the privilege as self-evident. (43) Some commentators have also presumed that the privilege should apply to criminal as well as civil cases (44)

This Article challenges the common view in favor of the trade secret privilege by arguing that none should exist in criminal proceedings. (45) As with other kinds of sensitive information, such as witnesses' medical records, courts may issue protective orders to limit the use and distribution of trade secrets beyond the needs of the proceeding. (46) But trade secret holders should wield no special power to block criminal defendants' access to evidence altogether. (47) Courts should refuse to extend the privilege wholesale from civil to criminal cases, and legislatures should pass new laws that limit safeguards for trade secret evidence in criminal proceedings to protective orders and nothing more. (48)

This Article begins by describing recent criminal cases in which developers have claimed entitlements to withhold trade secret information from the accused. A California defendant's attorney was denied access to trade secret evidence under a protective order despite insisting, "I've been a lawyer for 30 years and I've never violated a court order." (49) A company that sells an audio surveillance system for gunshot alerts refused to comply with a defense subpoena for...