Privacy Laws Should Help, Not Harm, Criminal-Justice Reform

Authors: Rebecca Wexler and John Villasenor


American society urgently needs to address structural disparities in the criminal-justice system. One important disparity—which is both easily mitigated and generally unrecognized—is the asymmetry of information access granted to prosecutors and defendants. Prosecutors can easily access digital records that establish guilt. But defendants are far less empowered to access digital records that prove innocence.

Privacy laws are a key source of this disparity. The Stored Communications Act (SCA), for instance, permits law enforcement—but not defense investigators—to access certain evidence from Internet companies. Fortunately, there are two straightforward policy solutions to this problem. First, new federal privacy legislation should include language requiring symmetric information access for defendants. Second, the Department of Justice should adopt a new interpretation of the SCA to protect fairness in criminal proceedings.

Download PDF

About the Authors

Rebecca Wexler is an assistant professor of law at the University of California, Berkeley. She is also a co-director of the Berkeley Center for Law & Technology and a nonresident fellow at the Brookings Institution.

John Villasenor is a professor of electrical engineering, law, public policy, and management at the University of California, Los Angeles. He is also director of the UCLA Institute for Technology, Law, and Policy and a nonresident senior fellow at the Brookings Institution.