February 15, 2024
BLACK BOX ALGORITHMS’ USE IN CRIMINAL JUSTICE SYSTEM TACKLED BY BILL REINTRODUCED BY REPS. TAKANO AND EVANS
WASHINGTON, D.C. – Today, Rep. Mark Takano (D-Calif.) and Rep. Dwight Evans (D-Penn.) reintroduced the Justice in Forensic Algorithms Act of 2024 to ensure defendants’ rights are not stripped away as more and more investigations and prosecutions use black-boxed algorithms. People are being convicted without having the chance to see or challenge the source code that’s being used against them — a trend that will only grow as these technologies become more widespread.
“The United States has a longstanding commitment to ensure criminal prosecutions are fundamentally fair,” said Rep. Takano. “As the use of algorithms proliferates in the prosecution of Americans, we must ensure that they can see and challenge black boxes that could determine if they are convicted. The trade secrets privileges of software developers should never trump the due process rights of defendants in the criminal justice system.”
“Opening the secrets of these algorithms to people accused of crimes is just common sense and a matter of basic fairness and justice,” said Rep. Evans. “People’s freedom from unjust imprisonment is at stake, and that’s far more important than any company’s claim of ‘trade secrets.’”
Across the country, law enforcement agencies are increasingly using algorithmic software to partially automate the analysis and interpretation of evidence in criminal investigations and trials. These forensic algorithms have been used in thousands of criminal cases across the United States over the last decade to analyze everything from degraded DNA samples and faces in crime scene photos to gunshots and online file sharing. People are being convicted based on the results of these potentially flawed forensic algorithms without the ability to challenge this evidence due to the intellectual property interests of the software’s developers.
Only the developers know how these algorithms work. Judges consistently side with developers and defendants are being denied the ability to challenge the evidence used against them and evaluate how these algorithms work because of the developers’ trade secret protections. This presents a threat to due process rights and violates the confrontation rights guaranteed for defendants in the Constitution’s Bill of Rights, as well as in federal, local, and state law.
To address this challenge, the Justice in Forensic Algorithms Act of 2024 has two main parts:
- Prohibits the use of trade secrets privileges to allow the defense access to source code and other information about software used to process, analyze, and interpret evidence in criminal proceedings;
- Directs the National Institute of Standards and Technology to establish both Computational Forensic Algorithm Testing Standards and a Computational Forensic Algorithm Testing Program; and requires federal law enforcement to comply with standards and testing requirements in their use of forensic algorithms
ENDORSMENTS: Electric Frontier Foundation and The Legal Aid Society
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