The Missing Algorithm: Safeguarding Brady Against the Rise of Trade Secrecy in Policing

Abstract

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 Brady’s 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 Constitution’s 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 defendant’s due process rights with intellectual property protections.