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The Open Society and Its Digital Enemies: A Reply to Professors Bambauer and Garrett

Don’t let our title fool you. Jane Bambauer and Brandon Garrett are friends of an open society, not its enemies. In distinct and distinctly important ways, they have engaged and expounded upon our concept of digital innocence, and in so doing, they have emboldened us to find the courage of our convictions and indeed to sharpen and intensify our sense that an open society demands even more government transparency, especially in data driven criminal cases. In fact, we agree with their animating principles. Professor Bambauer reminds us that technology must be made to serve the human demand for truth and the drive to achieve it within a decent system of law. For Professor Garrett, the issue is one of recognizing and applying our concept over the full ambit of criminal justice. Their pieces can be construed as responding not only to us but to one another as well (inadvertently, of course). This interactive work is critical, providing precisely the kind of rigorous challenge that improves legal thought. Relatedly, our thesis for this brief Essay is that the entire system of data-driven prosecution must be susceptible to testing if it is to be considered reliable.

In Part I, we offer brief responses to the separate pieces by Professors Garrett and Bambauer. Part II then details an undertheorized danger from unequal access to data mining technology, one that could fundamentally destabilize the relationship between citizen and state. We believe that systems that are functionally ex parte and hidden, untested and unchallengeable, operating in an environment of unequal access to data, are the digital enemies of an open society.

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