Low-Tech Public Defenders Just Barely In The Game

It’s possible to extract supposedly secure information from all manner of devices, almost without exception, but the ability to do so does not come cheap. Generally it takes a hefty budget, and, in the adversarial legal context, a warrant. These are two things available to prosecutors but not to public defenders, putting their clients had a huge disadvantage. Emails, for example, are one kind of information that can be crucial in defense. Location information is another. One example cited in this New York Times investigative piece concerns a man accused of confronting and assaulting his ex-partner on the street. He was cleared when cell phone location information proved he was elsewhere at the time of the alleged attack, information that was obtained by way of a device/software package that costs tens of thousands a dollars. In this case the defendant was lucky enough to have gotten help from New York City’s Legal Aid Society, which has a forensics lab with equipment said to cost about $100K. That’s a sum that dwarfs the annual budget of most public defenders’ offices but in turn is dwarfed by that of the Manhattan district attorney’s office, which a few years ago established a forensics lab that cost $10 million. Most public defenders’ offices aren’t even in the game, their budgetary handicap exacerbated by privacy policies like those exemplified at Google and Facebook. They are somewhat fastidious when it comes to guarding client information, but with a notable exception when the supplicant has a warrant. The problem for the public defenders is they can’t get a warrant. They can get a subpoena, but that allows access only to information about users, not the content of their communication. The advantage of law enforcement/prosecution over defense is amplified, says the Times, by the fact that smaller jurisdictions often can get help from the nearly 350 shared cyber crime labs nationwide.