By Chris Adams

Data tools available to law enforcement are growing rapidly as technologies change and artificial intelligence systems get more sophisticated.

But as the police advance their ability to catch the bad guys, what happens to the rights of the people who might be caught in the police nets?

In a session with National Press Foundation fellows, Rebecca Wexler (bio, Twitter) of the University of California, Berkeley, School of Law detailed what is happening at the frontiers of the technological revolution – and how it is already impacting the criminal justice system

For example: Wexler notes that social media messages, photo metadata, Amazon Echo recordings, smart water meter data, and Fitbit readings have all been used in criminal cases. New laws – such as the California Consumer Privacy Act, from 2018 -- allows law enforcement officers to obtain data from those tech companies but prohibit the companies from immediately notifying the person under investigation.

Facebook is also making it difficult for criminal defendants to get information from Facebook, which only responds to subpoenas from a state court if that state is California – creating a barrier for defendants who live elsewhere.

There are also problems when trade secrets come into conflict with a defendant’s right to mount an effective defense. For example, there is new technology available that helps police analyze DNA when there is only a tiny sample of DNA available; when a defendant asked for the source code on how that technology did what it did, he was denied.

Wexler also talked about the potential problems with so-called “deep fake” videos that can make it appear somebody was someplace they weren’t, or phone-spoofing technologies that make calls or send texts from manufactured numbers. How will police do their jobs – and how will defendants defend themselves – in light of that kind of “evidence”?