Litigation as a tool to protect fair trial rights in the age of new technologies

As new technologies are increasingly used in public decision-making, litigation becomes crucial to upholding fair trial rights in the age of new technologies. The Algorithmic Fairness for Asylum Seekers and Refugees (AFAR) Project, hosted at the Hertie School’s Centre for Fundamental Rights, has developed the Tech Litigation Database, collecting case law on automated decision-making worldwide, to inform the litigation strategies of practitioners and civil society organisations and raise awareness about the impact of new technologies on fundamental rights.

New Technologies and the Challenges to Fair Trial Rights

A multitude of new technologies are being used and tested on individuals in the public sphere, raising important legal issues concerning fundamental rights. In criminal justice, artificial intelligence (AI) and automated systems are increasingly used to investigate and prosecute crimes. Such systems include risk assessment, biometric identification, fraud detection, automated expert analysis, and even systems to assess the reliability of criminal evidence (such as deep fake detectors). However, introducing new technologies in the criminal process does not come without risks for fair trial rights.

Consider the controversial case of predictive policing, which involves using algorithms to predict criminal behaviour. Not only can this technology reinforce discriminatory policing patterns, but it also challenges the core principle of the presumption of innocence. Another example is facial recognition technology, a powerful technological tool that supports police and prosecutors in identifying suspects and providing evidence at trial. Not only does facial recognition impinge on the right to privacy, but also on the rights of the defence. How can defendants challenge the use of such systems when used as evidence in criminal proceedings? What happens when such systems provide inaccurate and biased results? The lack of transparency and the technical complexity of technological tools represent an important challenge to fair trial rights, disempowering the person suspected or accused of crimes.

Upholding Fair Trial Rights: The Role of Litigation

Informed litigation is critical to responding to these emerging challenges, allowing Courts to play a vital role in upholding fair trial rights in our technological society. Courts are currently tackling critical questions on the intersection between human rights and new technologies.

For example, is predictive policing incompatible with the right to be presumed innocent? In a recent case in Germany, for instance, the Constitutional Court declared predictive software unconstitutional as it violated the right to self-determination.

Or does the right to confrontation require disclosing the source code when AI systems are used in criminal proceedings? In the US, while initially, Courts were reluctant to require software providers to provide access to information and source codes – as protected by trade secrecy – a recent judgment reverted this trend. Considering facial recognition “a novel and untested technology”, a court in New Jersey ruled that the defendant would be deprived of due process rights unless they could access the source code, error rates, and other information about the system used.

As legal challenges related to automation in the public sector increase, legal practitioners can learn and take inspiration from this emerging case law to inform their litigation strategies.

The Tech Litigation Database: The First Database on Automated Decision-Making

To support lawyers in their efforts to challenge new technologies and automated systems, the AFAR Project, funded by the Volkswagen Foundation, has developed a new tool: the NewTech Litigation Database. This is the first freely available online resource specialising in litigation against automated decision-making.

Currently, case law related to contested uses of new technologies is stored in single national databases, often not translated into English. Our database aims to overcome these access and language barriers through a user-friendly interface, visuals, and advanced search tools. The Database includes key details and a summary of all decisions in English. It includes judgments, decisions, or opinions from national and international courts and Data Protection Authorities.

The Tech Litigation Database is a valuable resource for researchers, practitioners, and civil society organisations working across all aspects of using new technologies and human rights. It also aims to raise awareness and provide transparency about the extent and impact of new technologies, informing and supporting the work of legal actors and civil society organisations. The launch is planned for May 2024. If you are interested in the project, follow the countdown to the launch on the social media project and visit the AFAR website to access the database.

Copyright for the image: ©Hertie School and bitteschön

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