The Confrontation Clause in the Sixth Amendment to the U.S. Constitution guarantees that, “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” The courts have read this to mean that criminal defendants have the right to fully confront any evidence brought against them.
When the evidence is technological in nature, the Confrontation Clause gives the accused the right to fully examine how that technology works. The defense needs this in order to challenge whether the technology works as described, whether it worked properly in a particular case, and whether its use violated the suspect’s other constitutional rights.
The right to confront the case against you is an issue of fundamental fairness in the criminal justice system.
“If the defense isn’t able to examine these techniques, then we have to just take the government’s word for it…. And that’s just too dangerous,” comments a surveillance and cybersecurity lawyer with the ACLU.
Recently, the independent, nonprofit newsroom ProPublica published a story on law enforcement’s use of software to identify people who have downloaded or shared child pornography. There are at least two major problems with this. First, many state and federal prosecutors are refusing to reveal how the software works. Second, the software appears to be resulting in people being falsely accused.
It’s everyone’s worst nightmare: being accused of downloading child porn when you know you didn’t. These particular defendants could easily be completely innocent. Even if they are not, the rights of the accused must be protected in every case or the system is unfair.
ProPublica cites two cases where the software was wrong
Law enforcement uses software like the Child Protection System and Torrential Downpour in an effort to identify people who download or share child pornography online. They are supposedly able to flag particular images and pin them to an individual’s IP address.
Yet ProPublica found at least two cases where the software claimed certain images had been downloaded to defendants’ IP addresses but those images were never found on the defendants’ computers.
In both cases, courts ordered the prosecution to present the software to the defense for evaluation. In both cases, the prosecutors dropped the charges rather than risk revealing the software.
ProPublica interviewed members of law enforcement about why prosecutors are sacrificing their cases to keep the software from being examined, even under seal of the court. They said that revealing the secrets behind the software would threaten future investigations.
People don’t lose their constitutional rights simply because they are accused of a terrible crime. Child pornography defendants have every right to understand and challenge technological evidence that is being used to against them.
