Surveillance Discovery Project

Surveillance technology creates and perpetuates injustices across our legal system.

We have created a practical toolkit to help level the playing field for criminal defense attorneys and the clients they represent. This toolkit contains model motions that defense attorneys can adapt and use to request information about law enforcement's use of digital surveillance technologies, ranging from facial recognition to license plate readers to other forms of location tracking tech.

Thank you to our partners at the Harvard Law School Race & Law Clinic, who helped with drafting the model motions for this project.

Law enforcement agencies in Massachusetts and across the country increasingly rely on powerful digital surveillance technologies to investigate crimes and identify suspects. Facial recognition, license plate readers, gunshot detection systems, cell-site simulators, social media monitoring—these tools are now routine. But their use by law enforcement is often not disclosed, even to criminal defendants and their attorneys.

This practical litigation toolkit contains a library of model discovery and preservation motions, grounded in constitutional law, that criminal defense attorneys can adapt for cases involving various digital surveillance technologies.

The model motions are designed to surface what happened before a defense attorney takes on a new client’s case to ensure that defendants have a meaningful opportunity to challenge evidence derived from technologies with documented error rates, questionable evidentiary reliability, racial disparities, or constitutional vulnerabilities.

The toolkit contains both model motions that compel disclosure of how various surveillance technologies were used in a case, and that put the government or third-party surveillance technology vendors on notice that surveillance data must be preserved for litigation—before potentially exculpatory information or data is deleted.

Digital surveillance technologies are woven into nearly all modern criminal investigations, but prosecutors often fail to voluntarily disclose their use. For example, in many cases what looks like an eyewitness identification in a police report is actually the downstream result of a facial recognition search—a technology with documented error rates and known disparities in accuracy across race, sex, and age.

Over a dozen documented cases of wrongful arrest in the United States have been linked to erroneous facial recognition matches. The National Institute of Standards and Technology has found that many facial recognition algorithms exhibit significantly higher false positive rates for Black faces.

Data related to gunshot detection tools show the technology is both unreliable and concentrated in Black and Latino neighborhoods. Predictive policing tools have come under scrutiny for encoding and replicating historical discriminatory enforcement patterns.

Police use of these and other technologies raises discrimination and accuracy concerns. Law enforcement may also be using them in ways that violate our constitutional rights to privacy or due process.

Despite this record, defendants are routinely prosecuted without ever learning whether or how surveillance technology was used against them. These model motions are designed to help change that—one case at a time.

The model motions are available through a password-protected resource page accessible to verified criminal defense attorneys.

To request access, email techmotions@aclum.org with information verifying your work as a criminal defense attorney.