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Thousands of Convictions Questioned; Prisoners Released Show Why Law Enforcement Technology Must Be Tested by Third Parties

by Dale Chappell

Denmark recently released dozens of prisoners after more than 10,000 convictions based on evidence derived from faulty software put people in prison for crimes they didn’t commit.

The problem was with the software used by law enforcement, which used cell-site location information (“CSLI”) to establish that a suspect was in the area of a crime when it happened. The software was supposed to collect the CSLI to provide a picture of the suspect’s movements and whereabouts at the time of the crime. And it did do that, only it did it incorrectly.

Instead, the software left out important details from the CSLI in creating that picture. It linked phones to the wrong cell towers, got the location of the towers themselves wrong, and only registered some of the CSLI. It even linked the same cellphone to multiple towers at the same time, often hundreds of miles apart.

Denmark Justice Minister Nick Haekkerup said in a statement that the attorney general stopped all prosecutions based on the software’s CSLI: “Telecommunications data temporarily may not be used in court as evidence that the defendant is guilty or as the basis for pre-trial detention.”

But rarely is such a problem uncovered before someone is impacted by it. Evidence derived from technology is too often accepted on blind faith. It’s simply assumed that the evidence is reliable because a machine did it and not a human.

Of course, humans built that machine, and that means it’s not perfect, either. For example, police often get leads from facial recognition software, judges use risk assessments done by computers in deciding to grant bail, and as just mentioned, CSLI evidence is used to place people at crime scenes.

None of it is perfect, yet rarely does any of it get audited by a third party to make sure it’s working like it should. The audits usually come only after lives have been impacted by the errors made — if they are ever discovered.

This is where third-party auditors could provide a much-needed check on technology. Having an unbiased third party test the technology is a crucial layer of verification to make sure the system is doing what its creators say it does — and doing it correctly. Having humans involved in the technology do the testing is not enough, though.

Recall the Hinton lab scandal in Massachusetts in 2011, when a lab technician falsified drug evidence that put tens of thousands of people in prison. Because the drug evidence was supposedly authenticated by machines in a lab, the evidence was accepted as accurate. Only years later did the error come to light, and in 2017, the Massachusetts Supreme Court overturned 21,587 drug convictions because of the error.

And in New Jersey in 2018, the Supreme Court there questioned about 21,000 DUI convictions after it was revealed that the officer in charge of calibrating the breathalyzers in five counties didn’t do it properly. The court is still trying to figure out what to do about it.

Sure, both examples involved human error. But had a third-party been monitoring and testing the technology involved, so many thousands of lives may not have been affected. It’s not the point that there was human error; people were deprived of due process and liberty because those systems were not third-party audited.

Now consider when people are deprived of due process and their freedom is threatened because of a faulty computer program. That’s what happened in Denmark. “This situation has changed our mindset about cell phone data,” Denmark director of public prosecutions Jan Reckendorff said. “We are probably going to question it as we normally question a witness or other types of evidence, where we consider circumstances like who produced the evidence.”

In the U.S., law enforcement routinely use CSLI to lock up people, and the Supreme Court recognized in Carpenter v. United States, 138 S. Ct. 2206 (2018), that CSLI is so intrusive into people’s lives that cops must “get a warrant,” as Chief Justice John Roberts said. Warrants, however, don’t ensure that the CSLI is accurate. Only a third-party review of the technology used to gather the evidence can do that.

Denmark proved that to be true. And instead of trying to fight to keep the shaky evidence from being tossed, Denmark’s law enforcement leaders immediately and openly put prosecutions on hold and let people out of prison. “We simply cannot live with the idea that information that isn’t accurate could send people to prison,” Reckendorff said. If that were the attitude in this country, there would be a lot fewer innocent people sitting in prison. 

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Sources: abajournal.com, theguardian.com, thedailybeast.com

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