Personal technology aids in criminal proceedings, but poses privacy, rights risks

As a part of a multi-year project to look at the challenges that technology poses for the criminal justice system, researchers from RAND and RTI International assembled a group of practitioners, legal scholars and advocates to examine issues involving technology and individual rights.

The group of thirteen experts identified more than three dozen needs, each related to a specific problem or challenge posed to the protection of individual rights by new technology.

The area they flagged as requiring the most attention is assuring the quality and integrity of data used by the criminal justice system across a wide range of uses, according to the report. This includes both the quality of information gathered about crimes and placed into a digital record, as well as how that data is analyzed such as in risk assessment tools used by both police and the courts.

For example, significant effort has been devoted to the creation of risk assessment models that predict the likelihood that a person will fail to appear at their trial or commit crimes in the future.

When used in courts, these models may allow an individual to be released with a lower bail or no bail if they are assessed to be a low risk — creating cost savings for both the public and the defendant, according to the report. To the extent the tools increase consistency between judges, the models could increase fairness. But if the predictive models unknowingly incorporate bias, then the tools could create systematic bias in the process.

The report also recommends better technical training and education for workers across the criminal justice system about how to properly use digital tools. And having that capability broadly available is key for the system to do its job well. While a database of evidence may be available to both the prosecution and defense, if an overworked public defender does not have a skilled data analyst as a part of his or her team, then digital tools may tip the scales of justice in one direction, experts warn.

“Digital tools hold the promise to speed proceedings and increase fairness, but both sides should have the skills and resources necessary to use them,” Jackson said. “For example, hundreds of hours of surveillance recordings may hold important evidence, but will both parties have the skills and resources to comb through and analyze all the data?”

The report notes that personal technology devices already have become important tools in criminal investigations. In at least one case, a fitness tracker was used in court to disprove a women’s allegation that she was sexually assaulted in her home — the fitness tracker showed she had been awake and walking the entire night.

As medical devices such as cardiac pacemakers become more advanced to include features such as Wi-Fi, it opens the possibility that life-sustaining technology also could be used to collect evidence against a user, according to the report.

 Read more in Brian A. Jackson et al., Future-Proofing Justice: Building a Research Agenda to Address the Effects of Technological Change on the Protection of Constitutional Rights (RAND, 2017)