Privacy Laws Should Help, Not Harm, Criminal-Justice Reform
Summary
American society urgently needs to address structural disparities in the criminal-justice system. One important disparity—which is both easily mitigated and generally unrecognized—is the asymmetry of information access granted to prosecutors and defendants. Prosecutors can easily access digital records that establish guilt. But defendants are far less empowered to access digital records that prove innocence.
Privacy laws are a key source of this disparity. The Stored Communications Act (SCA), for instance, permits law enforcement—but not defense investigators—to access certain evidence from Internet companies. Fortunately, there are two straightforward policy solutions to this problem. First, new federal privacy legislation should include language requiring symmetric information access for defendants. Second, the Department of Justice should adopt a new interpretation of the SCA to protect fairness in criminal proceedings.
At this inflection point, the choice is not between speed and safety but between ungoverned acceleration and a calculated momentum that allows our strategic AI advantage to be both sustained and secured.
Improved detection could strengthen deterrence, but only if accompanying hazards—automation bias, model hallucinations, exploitable software vulnerabilities, and the risk of eroding assured second‑strike capability—are well managed.
A dedicated and properly resourced national entity is essential for supporting the development of safe, secure, and trustworthy AI to drive widespread adoption, by providing sustained, independent technical assessments and emergency coordination.
Congress should establish a new grant program, coordinated by the Cybersecurity and Infrastructure Security Agency, to assist state and local governments in addressing AI challenges.