Press Release: 7/21/2026

ACLU of Massachusetts Surveillance Discovery Project to help defense attorneys learn if surveillance tech was used to build a case against their clients

 

Defendants should know when police use digital surveillance technology such as facial recognition software or license plate trackers. Model discovery motions will help lawyers find out.

July 20, 2026 7:30 am

Media Contact

Mark Sheridan, media@aclum.org

The ACLU of Massachusetts today launched the Surveillance Discovery Project, a practical litigation toolkit containing model discovery and preservation motions that attorneys can adapt for use in cases involving digital surveillance technologies. Developed in collaboration with Harvard Law School’s Race & Law Clinic, this project will give Massachusetts criminal defense attorneys new tools to defend clients in an era when law enforcement is increasingly using surveillance tech, from facial recognition software to cellphone location tracking.

Defendants are routinely prosecuted without learning whether or how surveillance technology was used against them. These model motions are designed to help change that — both in individual cases and by laying the groundwork for attorneys to bring broader constitutional challenges regarding the use of certain technologies in police investigations. Those challenges could ultimately result in rulings that establish guardrails, such as requiring law enforcement to obtain warrants before deploying specific technologies.

“Surveillance technology is increasingly widespread, and the law isn’t doing a good enough job of keeping up,” said Gideon Epstein, policy counsel at the ACLU of Massachusetts. “We want to make sure criminal defense attorneys have the resources they need to defend their clients against potentially unconstitutional or otherwise unreliable uses of these technologies by law enforcement. With the Surveillance Discovery Project, we hope to help impose guardrails on the unchecked use of technologies like license plate readers, cellphone trackers, commercial data broker databases, and more.”

Although these model motions are written to assist criminal defense attorneys practicing in Massachusetts, the underlying arguments — rooted in core constitutional protections of privacy and due process — are broadly applicable across jurisdictions. However,the specific case law and local discovery rules in other jurisdictions may be different and should be reviewed by attorneys practicing in those states.

“It can take many years before ongoing police use of novel surveillance tools reaches a court through a constitutional challenge,” said Jennifer Herrmann, staff attorney at the ACLU of Massachusetts. “With new surveillance tactics emerging all the time, we want to close that gap, expedite constitutional challenges, and give courts more opportunities to evaluate whether police use of surveillance tech in a given investigation was in fact legal.”

The toolkit includes model discovery motions for more than a dozen specific surveillance technologies, including facial recognition, automatic license plate readers, and acoustic gunshot-detection systems. The toolkit also includes a model discovery motion covering generalized digital surveillance technologies for cases where law enforcement’s use of specific technology has not yet been identified. Finally, the toolkit also contains model motions for preservation of materials by government actors and third parties, to ensure that data regularly set for auto-deletion is available for the defense.

“Nowhere are the stakes higher than in the criminal legal system, where the intersection of policing and technology creates a fast-moving landscape that can be difficult for defendants and their attorneys to navigate,” said Michelle Leung, director of Harvard Law School’s Race & Law Clinic. “We’re grateful to the ACLU of Massachusetts for spearheading this critical initiative that fills a gap for criminal defense attorneys. The clinic students were proud to play a part in this cutting-edge work, drafting model discovery motions and digging into the technical and legal complexity behind surveillance technologies.”

Read more about the Surveillance Discovery Project here.