How digital privacy law asymmetries can hurt criminal defendants

--FILE--A Chinese mobile phone user shows the icons of App Store app, left, and messaging app Weixin, or WeChat, of Tencent on his iPhone smartphone in Ji'nan city, east China's Shandong province, 27 June 2017.Apple China said it will not take the blame for developers who charge differently on the iOS app and Android versions for the same product or service. Netizens have found they need to pay more on iOS than Android in using the same ride-sharing or video subscription services. Some Internet companies have reportedly adopted differential pricing plans through the use of Big Data based on a customer's buying behavior or interest, so a new customer may pay less than an old customer for the same product or service.No Use China. No Use France.

A defendant in a criminal trial is accused of threatening someone over a social media app. The prosecution can subpoena digital records from the social media company to build its case against the defendant. However, evidence that would prove the defendant’s innocence is also held by that company, and yet defense investigators are unable to obtain it due to the way data privacy laws are currently written. In this scenario, a privacy asymmetry exists between prosecution and defense that could keep an innocent person in jail.

Rebecca Wexler, a law professor at the University of California Berkeley School of Law and a nonresident fellow at Brookings’s Center for Technology Innovation, has identified and studied this emerging problem and has suggested how legislators can fix data privacy laws to address it. On this episode of the Brookings Cafeteria, Wexler is interviewed by John Villasenor, a Brookings nonresident senior fellow, about her research on this issue.

Also on this episode, in a new Coffee Break segment, meet Alex Engler, a David M. Rubenstein Fellow in Governance studies who examines the implications of artificial intelligence and emerging data technologies on society and governance.

See also:

How well-intentioned privacy laws can contribute to wrongful convictions

Privacy Asymmetries: Access to Data in Criminal Investigations

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