The authors of a recent toolkit are re-evaluating critical issues surrounding surveillance in legal cases. Their primary concern extends beyond the obfuscation of evidence from prosecutors; they emphasize the risk faced by defendants who may remain completely unaware that a surveillance tool has been utilized in their case. This lack of knowledge can extend to defense attorneys who may not recognize the need to inquire about such technological involvement.
Gideon Epstein, a policy counsel focused on technology at a civil liberties organization and co-author of the toolkit, highlights the implications of Massachusetts’s infamous license plate reader case, Commonwealth v. McCarthy. In this instance, the defense requested records from only a select few cameras instead of considering the statewide network. Epstein points out that often, defense strategies do not encompass the full extent of surveillance technologies in play. He asserts that the motions filed by the defense aim to encourage attorneys to demand comprehensive disclosures while holding the government accountable for providing all relevant information.
The preservation motions tackle another critical issue: the potential destruction of surveillance evidence. For instance, Axon’s Draft One, an AI-driven tool for composing police reports from body camera audio, intentionally discards its initial drafts. An Axon product manager stated that this decision was made to prevent “disclosure headaches” for law enforcement and prosecutors. However, California responded by passing legislation mandating that agencies retain original drafts, showing a more proactive stance on transparency.
Further complicating matters, Flock Safety’s license plate reader network typically deletes footage after 30 days. Similarly, a contract for Chicago’s ShotSpotter gunshot detection system designates the gunfire data as the vendor’s property, not belonging to the city. This raises concerns about the availability of crucial digital evidence that defendants may require to contest allegations, which could disappear before a defense attorney is appointed.
Flock Safety’s spokesperson, Paris Lewbel, asserts that measures are in place to maintain the integrity and authenticity of data stored in their system. They have mechanisms to verify that any captured automated license plate reader image or investigative report remains unaltered since retrieval. Lewbel also mentions that Flock adheres to legal requirements for data requests, referring inquiries not mandated by law back to the respective customer while keeping them informed.
Similarly, a representative from SoundThinking, the maker of ShotSpotter, confirmed that the company complies with subpoenas and court orders from any party involved and cooperates with reasonable data requests in criminal cases. For confidential materials, such as proprietary information, the company seeks to limit dissemination through court motions.
Epstein emphasizes that while the ACLU generally advocates for the rapid deletion of surveillance data, their goal also includes protecting that same data as potential evidence for defendants facing charges. The preservation motions are specifically designed to ensure such evidence remains available.
These developments are not purely theoretical; Massachusetts’s judicial system has taken significant actions recently. In 2024, the state’s Supreme Judicial Court permanently dismissed drug and firearm charges against a Boston individual, prohibiting prosecutors from refiling after law enforcement ignored a court directive to disclose records of fake social media profiles employed for surveillance. Furthermore, a ruling last year established that defendants could require hearings to compel prosecutors to validate the efficacy of ShotSpotter before presenting evidence to a jury. These judicial precedents illustrate the increasing necessity for a robust toolkit, based on Massachusetts law, which the ACLU believes can be adapted for broader application across different states.