Access for me, not for thee
August 2, 2019 6:48 AM   Subscribe

UC Berkeley law professor Rebecca Wexler writes in the LA Times about "a cluster of new and proposed state and federal laws" that strengthen consumer privacy protections. Unfortunately, the new wave of legislation offers broad exceptions for law enforcement requesting access to data from third-party companies in the course of an investigation--while similar access is denied to defendants trying to prove their innocence. Writes Wexler: "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." Further detail provided in a recent paper.
posted by sugar and confetti (5 comments total) 16 users marked this as a favorite
 
Thanks so much for posting this! It's very interesting.
posted by internet fraud detective squad, station number 9 at 6:57 AM on August 2, 2019


It's an important issue, but a tricky one. There are institutional constraints on government investigators (btw, the Privacy Act has DEFINITELY been used in attempts to deny data to government investigators). Not so much on private defense lawyers. Imagine someone like Boies or Dershowitz deciding they were entitled to root through (without notice!!!) all the locked social media of anyone even vaguely, tangentially associated with some defense client of theirs. I'm not saying it's the only or the controlling concern, but it's one that may not be immediately obvious to nonlawyers (and also describable in five minutes this morning).
posted by praemunire at 8:40 AM on August 2, 2019 [2 favorites]


praemunire: Perhaps you can describe your arguments when it's not five in the morning. Perhaps non-lawyers (like myself) wouldn't be able to understand the arguments, but there are plenty of lawyers on this site.

Also, if you could also describe a framework that would address the concerns that Professor Wexler puts forth in her op-ed, that'd be awesome.
posted by el io at 5:25 PM on August 4, 2019 [1 favorite]


Also, if you could also describe a framework that would address the concerns that Professor Wexler puts forth in her op-ed, that'd be awesome.


I'm not her, but...

This is like a six month long full-time project tbqh! Not saying praemunire couldn't do it, but coming up with these kinds of answers is something people do for tenure :) The criminal legal system is wickedly complex!

The big picture argument is that the government has power to make people do things, power that the rest of us don't have. The legal system has known that for a long time, so there are certain systems in place that aim to limit the government. Those systems aren't necessarily in place to protect people from non-governmental actors. So if you are going to give non-governmental actors power in a way that puts them at parity with governmental actors, you should consider whether you need to put some safeguards in place to protect third parties.

(This echoes the privatization fight that a lot of people have had about making public services into private contractor employees of the government --- if they have state-like power, they might need to be restricted as though they were state entities.)
posted by internet fraud detective squad, station number 9 at 6:07 AM on August 5, 2019


While I agree that protections would need to be in place to prevent abuses by third parties, I would also argue that protections need to be in place to prevent abuses by the government (and prosecutors). As it stands prosecutors all-to-often find evidence that should be turned over to defense teams that isn't.
posted by el io at 1:56 AM on August 16, 2019


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