New bill would let defendants inspect algorithms used against them in court

A pair of Democratic lawmakers are seeking to give defendants more information about algorithms used against them in a criminal trial.

Reps. Mark Takano (D-CA) and Dwight Evans (D-PA) reintroduced the Justice in Forensic Algorithms Act on Thursday, which would allow defendants to access the source code of 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 enforcers would need to meet.

The bill would act as a check on unintended 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 consequential decisions in many different sectors, including both crime-solving and health care, has raised alarms for consumers and advocates as a result of such research.

Takano, in a phone interview on Thursday, pointed to the case of Oral “Nick” Hillary, who was accused of a 2011 murder in New York. While traditional DNA analysis methods did not match Hillary to the crime, according to reports around the judicial proceedings, prosecutors had hoped to enter into evidence DNA analysis from a computer program called STRmix that could implicate him. A judge ruled in 2016 that those results could not be brought into trial.

That example demonstrates why the criminal justice system needs to 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 being infallible,” he added. While the industry may take issue with the bill’s impact on their intellectual property, Takano said he doesn’t think “proprietary profit-making rights supersede the due process rights of criminal defendants.”

Takano acknowledged that gaining or hiring the deep expertise needed to analyze the source code might not be possible for every defendant. But requiring NIST to create standards for the tools could at least give them a starting point for understanding whether a program matches the basic standards.

Takano introduced previous iterations of the bill in 2019 and 2021, but they were not taken up by a committee.

While the bill does not yet have Republican co-sponsorship, Takano is optimistic that the issue can cut across party lines. He pointed to bipartisan concern about granting law enforcement agencies excessive surveillance power, raised by the debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act.

“There are constituencies in both parties for this,” Takano said. “I’m convinced of it.”