will trade secrets kill the 6th amendment?

As we move into an increasingly AI-influenced world, we will have to continually revisit our governance structures and approaches to figure out what freedoms still exist, what are at risk, and what need to be rethought. The recent move to include algorithms in the bail bond process should lead us to consider potential impacts to the constitution.

In particular, the 6th amendment says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

When algorithms come into the equation, how does an individual “confront” said algorithm? There are multiple complications. The first is that if typical Machine Learning techniques are used, the inner workings are opaque at best, as even computer scientists aren’t sure what is going on under the hood. The second, and perhaps more problematic, is the fact that the courts are using private companies to provide capabilities, and if their proprietary algorithms are challenged, they likely will invoke a “trade secrets” defense to keep them proprietary.

This is neither an indictment of AI, ML, or private sector involvement in court processes. Rather we need to think about these implications and how the constitution will evolve in a rapidly changing world. Yet another reason for having both ethical and policy expertise embedded into the technology development and adoption processes.

Share your thoughts