Natalie Ram (Baltimore Law) applies the tools of innovation policy to the problem of criminal justice technology in her latest article, Innovating Criminal Justice (forthcoming in the Northwestern University Law Review), which is worth a read by innovation and criminal law scholars alike. Her dive into privately developed criminal justice technologies—"[f]rom secret stingray devices that can pinpoint a suspect’s location to source code secrecy surrounding alcohol breath test machines, advanced forensic DNA analysis tools, and recidivism risk statistic software"—provides both a useful reminder that optimal innovation policy is context specific and a worrying depiction of the problems that over-reliance on trade secrecy has wrought in this field.
She recounts how trade secrecy law has often been used to shield criminal justice technologies from outside scrutiny. For example, criminal defense lawyers have been unable to examine the source code for TrueAllele, a private software program for analyzing difficult DNA mixtures. Similarly, the manufacturer of Intoxilyzer, a breath test, has fought efforts for disclosure of its source code. But access to the algorithms and other technical details used for generating incriminating evidence is important for identifying errors and weaknesses, increasing confidence in their reliability (and in the criminal justice system more broadly), and promoting follow-on innovations. Ram also argues that in some cases, secrecy may raise constitutional concerns under the Fourth Amendment, the Due Process Clause, or the Confrontation Clause.
Drawing on the full innovation policy toolbox, Ram argues that contrary to the claims of developers of these technologies, trade secret protection is not essential for the production of useful innovation in this field: "The government has at its disposal a multitude of alternative policy mechanisms to spur innovation, none of which mandate secrecy and most of which will easily accommodate a robust disclosure requirement." Patent law, for example, has the advantage of increased disclosure compared with trade secrecy. Although some of the key technologies Ram discusses are algorithms that may not be patentable subject matter post-Alice, to the extent patent-like protection is desirable, regulatory exclusivities could be created for approved (and disclosed) technologies. R&D tax incentives for such technologies also could be conditioned on public disclosure.
But one of Ram's most interesting points is that the main advantage of patents and taxes over other innovation policy tools—eliciting information about the value of technologies based their market demand—is significantly weakened for most criminal justice technologies for which the government is the only significant purchaser. For example, there is little private demand for recidivism risk statistical packages. Thus, to the extent added incentives are needed, this may be a field in which the most effective tools are government-set innovation rewards—grants, other direct spending, and innovation inducement prizes—that are conditioned on public accessibility of the resulting algorithms and other technologies. In some cases, agencies looking for innovations may even be able to collaborate at no financial cost with academics such as law professors or other social scientists who are looking for opportunities to conduct rigorous field tests.
Criminal justice technologies are not the only field of innovation in which trade secrecy can pose significant social costs, though most prior discussions I have seen are focused on purely medical technologies. For instance, Nicholson Price and Arti Rai have argued that secrecy in biologic manufacturing is a major public policy problem, and a number of scholars (including Bob Cook-Deegan et al., Dan Burk, and Brenda Simon & Ted Sichelman) have discussed the problems with secrecy over clinical data such as genetic testing information. It may be worth thinking more broadly about the competing costs and benefits of trade secrecy and disclosure in certain areas—while keeping in mind that the inability to keep secrets does not mean the end of innovation in a given field.