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Big Data and Due Process

Today, electronic footprints may follow us wherever we go. Electronic traces, left through a smartphone or other device, can be tracked to the scene of a crime, or they can place a person far from a crime scene. Those traces can sometimes be tracked far more reliably than the types of trace evidence traditionally examined at crime scenes, like hairs, fibers, fingerprints, or tool marks. Cases have already come to light in which individuals have cleared their names by using digital evidence, whether a surveillance video, an E Zpass tag, a cellphone-tower signature, or an e-mail chain, and far more are certain to occur in the future. By the same token, individuals may be falsely implicated due to errors in large government or commercial databases, and evidence of innocence may linger in such archives without ever coming to light. Professors Joshua Fairfield and Erik Luna have done an important service by carefully introducing the problem of “digital innocence” and marking out areas in need of clear thinking and policy.

The role that constitutional criminal-procedure rights will play with respect to litigation of such evidence remains quite uncertain. One reason is that the Due Process Clause provides such limited regulation of discovery in criminal cases, both pretrial and postconviction. In this response piece, I discuss four additional problems at the intersection of Big Data and due process rights: (1) the need for developed electronic discovery rules in criminal cases; (2) the need to reconsider the meaning of Brady v. Maryland and the due process obligations of prosecutors and government agencies in the context of government data; (3) the parallel need to reconsider standards for effective assistance of defense counsel; and (4) the need for broader and better-adapted postconviction electronic discovery and remedies.

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