I am presenting on trial by file formats exploring public defenders challenges
working with novel surveillance data. My name is Rachel Warren and I'm a doctoral
student at the Bren School of informatics at UC Irvine and my co-author is professor
Niloufar Salehi an assistant professor at the UC Berkeley School of Information.
We have conducted an interview study of 22 members of the public defense community in
the United States that attempts to answer the following questions: First how does an increase
in digital surveillance data impact the quality of representation that public defenders feel they can
provide their clients, and second, what specific barriers complicate public defenders' ability
to use or refute surveillance data in court. Before i discuss the findings and implications
of our study i'll start with a little bit of relevant background about public
defenders and the way that surveillance data moves through the criminal justice system.
Public defenders are public employees who represent indigent people charged
in criminal cases. They may be employed at the federal state or municipal level and represent
clients charged with low-level misdemeanor crimes and felonies including capital murder.
Public defenders represent the majority of people charged with crimes in the
united states but they are notoriously underfunded, 72 percent of public defenders
work over the federal case limit of 400 misdemeanor or 150 felony cases a year.
The flow of digital surveillance data through the criminal justice system is complex. Law
enforcement received data from state sources via data sharing agreements and from private data
brokers both through legal search warrants and subpoenas (shown with blue arrows) and private
agreements and contracts (shown with orange arrows in this diagram) when a case goes to
trial law enforcement officials share this data with prosecutors, who may supplement it with data
from their own legal subpoenas. Prosecutors then provide defense attorneys with access to the data
through a legal process called discovery. Public defenders can supplement this with
their own subpoenas from private companies. What I want to highlight here is that public defenders
receive data only through relatively adversarial legal processes, depicted with the blue arrows,
discovery from prosecutors and subpoenas to private companies. On the other hand
prosecutors can acquire data both through these legal avenues, but also via informal relationships
with law enforcement and private companies. Our interview study produces three main findings,
first that public defenders lack the time and resources to adequately use data received in
discovery. Second, the structure of the criminal justice system systematically disadvantages
public defenders and thirdly that legal structures including privacy laws often deny public defenders
access to data and the means of interpretation that are available to law enforcement.
Our participants were unequivocal that spending time reviewing evidence improved their likelihood
of winning cases. Usually discovery would be received from prosecutors as raw data like body
camera footage social media reports or forensic analysis and a summary such as a police report or
lab analysis public defenders uniformly felt that these reports and summaries could be untrue and
that they must re-examine that raw data to craft their own story. Most participants describe being
unable to examine this high volume of data due to a lack of time and money. However in some cases
defense counsel also lacked a specific technical resources to process data or the funds to hire
experts our participants described receiving hundreds of hours of unlabeled video clips
in formats that they couldn't use 25,000 page unstructured pdfs and
spending hours trying to convert videos or documents from one format to another. Public
defenders are not just resource constrained but structurally disadvantaged I want to illustrate
these structural disadvantages with a case study from public housing in San Francisco.
There public housing is equipped with surveillance video in all public spaces provided by a company
called watchtower which has a data sharing agreement with police police can call watchtower
security on a dedicated 24-hour hotline to request data about any incident. The company will
then provide police with a highly edited video montage of the incident as police describe it
if the incident is implicated in criminal charges law enforcement will share the edited video
montage with prosecutors. Prosecutors are required to deliver this video montage to public defenders
as discovery thus the surveillance video enters the public defense office after passing through
three sets of adversarial hands, the private company the police and the prosecutor's office.
In order to get the raw video footage public defenders could theoretically subpoena it and
then re-edit it to tell a different narrative. In practice they rarely have the resources to do so
a related challenge is that public defenders lack the legal tools to enforce subpoenas
when asked if legal or technical hurdles prevented him from getting full access to social media data
a public defender blurted out. It's not privacy laws or technical hurdles it's
facebook being dicks-- they will provide all this information to law enforcement without a warrant,
but they just won't respond to our subpoenas very often.
Privacy laws often include broad exceptions for law enforcement without corresponding carve-outs
for defense counsel. For example defense counsel can only subpoena their client social media data
not the data of anyone else who might have exculpatory information
our findings indicate that privacy laws have backfired in some more subtle ways as well. Laws
that require search warrants for law enforcement to see data have been heralded as privacy wins.
However private companies are, as some of our interviewers who work responding to subpoenas
confirmed, more anxious to respond to law enforcement search warrants than
public defender subpoenas believing them to reflect a greater degree of legal urgency.
Our findings thus have three categories of implications: for technologists, policy,
and on a larger discussion of privacy perhaps the most critical implication of our findings for
technologists and those who produce data artifacts is the importance of considering the needs of
public defenders when designing and maintaining systems that passively collect data about people.
Technology providers should focus on developing the technical and procedural means to respond
to data requests for public defenders in law enforcement in a narrow and interpretable way.
we find that in the short term public defenders and their clients
would benefit from some technical tools for searches searching and processing
data and these opportunities as well as some important constraints are outlined in our paper
still policy solutions that both limit law enforcement data access and ensure that public
defenders have parity access to data or better yet that reduce the number of cases that move through
the criminal justice system are critical. I feel some of these technical solutions,
explain one participant, like it would be great to have a system where people
are texted before their court date but even better would be a system where 90
of the court dates don't happen because they're totally useless.
Our findings highlight how the legal technicality of what data someone should be able to access does
not always match the practical reality of what information they can make sense of this reinforces
the importance of studying legal solutions and design considerations in tandem our work
also highlights the limitations of the current and deeply individual model of privacy rights as well
as the importance of considering interpretation and control to the same extent as visibility.
Ultimately, we argue that the most oppressive regime is not necessarily
the one with the most information, but one that has a monopoly on constructing the
narratives from that information that will define its citizens freedoms and choices.