Schneier: SCOTUS missed chance to motivate police to purge harmful database errors

Eliminating the exclusionary rule has been a lifelong goal of Chief Justice John Roberts, the New York Times reported this week, and with last month's Herring decision, he came achingly close to finally achieving that goal. (See a more detailed discussion of the Times piece at Simple Justice.)

But renowned security expert Bruce Schneier (rhymes with "wire") says the exclusionary rule is a "is a security system designed to protect us all from police abuse." In particular, he disapproves of SCOTUS disallowing exclusion of evidence based on unintentional errors in security databases, a topic which happens to coincide with Schneier's cybersecurity specialty. He writes:

The Herring case is more complicated, because the police thought they did have a warrant. The error was not a police error, but a database error. And, in fact, Judge Roberts wrote for the majority: "The exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level."

Unfortunately, Roberts is wrong. Government databases are filled with errors. People often can't see data about themselves, and have no way to correct the errors if they do learn of any. And more and more databases are trying to exempt themselves from the Privacy Act of 1974, and specifically the provisions that require data accuracy. The legal argument for excluding this evidence was best made by an amicus curiae brief filed by the Electronic Privacy Information Center, but in short, the court should exclude the evidence because it's the only way to ensure police database accuracy. ...

By not applying the exclusionary rule in the Herring case, the Supreme Court missed an important opportunity to motivate the police to purge errors from their databases. Constitutional lawyers have written many articles about this ruling, but the most interesting idea comes from George Washington University professor Daniel J. Solove, who proposes this compromise: "If a particular database has reasonable protections and deterrents against errors, then the Fourth Amendment exclusionary rule should not apply. If not, then the exclusionary rule should apply. Such a rule would create an incentive for law enforcement officials to maintain accurate databases, to avoid all errors, and would ensure that there would be a penalty or consequence for errors."

Increasingly, we are being judged by the trail of data we leave behind us. Increasingly, data accuracy is vital to our personal safety and security. And if errors made by police databases aren't held to the same legal standard as errors made by policemen, then more and more innocent Americans will find themselves the victims of incorrect data.

See related Grits posts:

• Police testilying, post-Herring
• Herring, civil liability, and Texas' exclusionary rule
• Without the exclusionary rule, negligent police are just 'wild and crazy guys'
• Exclusionary rule takes a gut shot