Using Zero-Knowledge to Reconcile Law Enforcement Secrecy and Fair Trial Rights in Criminal Cases

The use of hidden investigative software to collect evidence of crimes presents courts with a recurring dilemma: On the one hand, there is often clear public interest in keeping the software hidden to preserve its effectiveness in fighting crimes. On the other hand, criminal defendants have rights to inspect and challenge the full evidence against them, including law enforcement's investigative methods. In fact, in the U.S. adversarial legal system, the defendant's rights to scrutinize the government's tools are crucial to the truth-seeking process and to keeping law enforcement conduct lawful and constitutional. Presently, courts balance these conflicting interests on a case-by-case basis through evidentiary privilege law, often voicing their frustration with the challenging dilemma they face. We demonstrate how judicious use of a sophisticated cryptographic tool called Zero Knowledge Proofs (ZKPs) could help to mitigate this dilemma: Based on actual court cases where evidence was collected using a modified version of a peer-to-peer software, we demonstrate how law enforcement could, in these cases, augment their investigative software with a ZKP-based mechanism that would allow them to later provide full responses to challenges made by a defense expert-and allow a defense expert to independently verify law enforcement claims-while keeping the software hidden. We demonstrate the technical feasibility of our mechanism via a proof-of-concept implementation. We also propose legal analysis that justifies its use, discusses its merits, and considers the legal implications that the very existence of such a mechanism might have, even in cases where it has not been used. Our proof-of-concept may also extend to other verification dilemmas in the legal landscape.