Category Archives: Privacy

Layered Opacity: Criminal Legal Technology Exacerbates Disparate Impact Cycles and Prevents Trust

Predictive policing tools used widely by law enforcement agencies attempt to identify where crime will happen before it does. These analyses determine police deployment, and ultimately, arrest data. In this article, Ben Winters highlights how risk assessment tools use that data, combined with various other inputs, to determine detention, bail, sentencing, parole, and more which give rise to serious transparency and oversight concerns.

Particularly, Winters highlights the urgency of these paramount concerns given the tool’s operation in a system that severely disadvantages already marginalized communities. Winters argues that the relatedness of the tools is under-recognized and could be stronger reflected in advocacy efforts and regulatory efforts. This article explains the harm compounded by the tools and explores regulatory options both inside of traditional government levers, and the approaching regulation of data and data practices.

Defining the Scope of “Possession, Custody, or Control” for Privacy Issues and the CLOUD Act

With a growing number of US companies storing their electronic data across country lines, US law enforcement agencies are left with the difficult task of trying to access electronic evidence stored outside of their physical jurisdictions.

In response, Congress passed the Clarifying Lawful Overseas Use of Data Act (Cloud Act) in 2018 to provide the US government with the power to order the production of electronic evidence that is stored outside of the US if it is within a US company’s “possession, custody, or control.”

However, the Cloud Act does not define what constitutes the “possession, custody, or control” of electronic evidence, raising concerns about the scope of US authority under the Act. Through their examination of existing domestic and international jurisprudence interpreting these terms in other legal contexts, Hemmings, Srinivasan, and Swire outline the key factors courts should balance in analyzing this pivotal phrase.