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Trade secrecy, a form of intellectual property protection, serves the important societal function of promoting innovation. But as police departments across the country increasingly rely on proprietary technologies like facial recognition and predictive policing tools, an uneasy tension between due process and trade secrecy has developed: to fulfill Bradys constitutional promise of a fair trial, defendants must have access to the technologies accusing them, access that trade secrecy inhibits. Thus far, this tension is being resolved too far in favor of the trade secret holder-and at too great an expense to the defendant. The wrong balance has been struck.
This Note offers three contributions. First, it explains the use of algorithms in law enforcement and the intertwined role of trade secrecy protections. Second, it shows how trade secrecy clashes with the Due Process Clause-the Constitutions mechanism for correcting the power asymmetry between the state and the defendant-and argues that due process should not waver simply because a source of evidence is digital, not human. Third, it proposes a solution that better balances a defendants due process rights with intellectual property protections.
Introduction
Algorithmic policing is on the rise. Investigative tools like facial recognition, DNA genotyping, and predictive policing systems are increasingly-and effectively-being marketed by private technology companies as the best way to police efficiently under tight budget constraints.1 But because algorithmic systems are built by humans, they exhibit human fallibilities, including racial and gender bias, inconsistency, and error.2 Despite their similarities, algorithmic systems and humans are treated differently when used against a criminal defendant in court. Humans are subject to adversarial scrutiny; algorithmic systems are not.3 The difference is attributable to trade secrecy, a form of intellectual property protection designed to maintain "standards of commercial ethics" and "encourage[] invention."4 When invoked in the criminal context, however, trade secrecy shields algorithmic systems from adversarial scrutiny- even when the Constitution mandates it.5
It is perplexing that algorithmic systems receive heightened protection as intellectual property given that defendants' due process rights do not change simply because the investigatory source is digital, not human. This is particularly troubling given the government's affirmative duty under Brady v. Maryland to disclose helpful evidence to the criminal defendant.6 The Brady obligation, established by the Supreme Court to ensure that the defendant...