A pair of Democratic lawmakers are seeking to give defendants more information about the algorithms used against them in a criminal trial.
Representatives Mark Takano (D-CA) and Dwight Evans (D-PA) reintroduced the Thursday's Justice in Forensic Algorithms Act, which would allow defendants to access the source code of the software used to analyze evidence in their criminal proceedings. It would also require the National Institute of Standards and technology (NIST) to create testing standards for forensic algorithms, which software used by federal authorities would have to meet.
The bill would act as a check on undesirable outcomes that could be created by using technology to help solve crimes. Academic research has highlighted the ways Human bias can be built into software. and how facial recognition systems often struggle to differentiate black faces, In particular. The use of algorithms to make important decisions in many different sectors, including crime solving and healthcare, has raised alarm among consumers and advocates as a result of such research.
Takano, in a telephone interview Thursday, pointed to the case of Oral “Nick” Hillary, accused of a 2011 murder in New York. While traditional DNA analysis methods did not link Hillary to the crime, according to reports During the judicial process, prosecutors hoped to include as evidence a DNA analysis from a computer program called STRmix that could implicate him. A judge ruled in 2016 that those results could not be brought to trial.
That example demonstrates why the criminal justice system must be aware of both the “possibilities and limitations of this technology,” Takano said.
Defense attorneys and defendants themselves “should be able to question the technology and the technology should not be seen… as infallible,” he added. While the industry may disagree with the bill's impact on its intellectual property, Takano said he does not believe that “property rights to profit supersede the due process rights of criminal defendants.”
Takano acknowledged that obtaining or hiring the deep expertise necessary to analyze source code may not be possible for all defendants. But requiring NIST to create standards for tools could at least give them a starting point for understanding whether a program matches the basic standards.
Takano introduced earlier versions of the bill in 2019 and 2021, but they were not adopted by a committee.
While the bill does not yet have Republican co-sponsorship, Takano is optimistic that the issue can transcend partisan lines. He noted bipartisan concerns about giving law enforcement agencies excessive surveillance power, raised by the debate over reauthorizing Section 702 of the Foreign Intelligence Surveillance Act.
“There are constituencies in both parties for this,” Takano said. “I am convinced of it.”
