Understanding Evidence: How Tech Is Complicating Law for the Better
BY Tin Geber | Wednesday, May 28 2014
Scott Edwards from Amnesty International has been working with satellite imagery for legal evidence for the past 10 years. The beginning was Darfur in 2004, where AI started collecting satellite imagery to show evidence of war crimes. The project culminated in 2007 into Eyes On Darfur, a web verification platform where visitors could compare satellite imagery from different years and search for signs of war crimes such as mass displacement or destruction of villages.
The use of satellite imagery for evidence is by no means a new technology: remote sensing is one of the main reasons satellites are being deployed in the first place. However, in the last decade, the access to up-to-date satellite imagery has become orders of magnitude cheaper and easier. Therefore, it has become increasingly accessible for civil society to adopt satellite imagery and other types of remote sensing to document and advocate.
In cases where direct collection of evidence on the ground poses grave risks of injury, abduction, imprisonment or death, satellite imagery circumvents that risk. On the basis of the Darfur experience, Amnesty International built a “workaround program” that relies on satellite imagery to grant rapid access to crisis situations, corroborated by traditional evidence, such as witness testimony and surveying of large areas for greater precision (number of demolitions or evictions).
The use of satellite imagery is just one example of how advancements in technology have brought great improvements to the legal process over the years. Techniques like fingerprint matching, carbon-14 dating and DNA analysis have radically transformed criminal court proceedings, each bringing a new level of precision in the case analysis. Accordingly, these techniques require formally trained experts to conduct and present them.
However, new and different types of technology-based evidence materials and procedures are now coming of age. They are products of the internet era, and are defined by its axioms: (relative) ubiquity of access, cheap production, immediate consumption, and scores of readily available tools. The entry barrier varies in complexity, but in some cases it is irrelevantly low, like using a smartphone video camera for documenting abuse of authority.
This article explores some of the new technologies available to human rights advocates who want to further their cause through participation in legal processes. We explore some new possibilities and real life examples of new technologies for legal evidence, like satellite imagery and video documentation. Through interviews and case studies, we examine the practical ways these technologies have been incorporated in human rights processes. We also look into problems with evidence collection in international legal processes. In closing, we raise questions around the capacity of both human rights advocates and courts to effectively incorporate these processes in their daily work.
The eyes on the street
While satellite imagery and remote sensing provides a way to collect information from afar, video documentation gives people on the ground very powerful tools to bear witness. It has never been so easy to take videos: between smartphones and extremely cheap and reliable portable cameras, it has become rare not to have a camera nearby at all times.
N-Map addresses gaps in the legal system, making sure that the law achieves its intended goals through citizen monitoring. Some of N-Map’s work is directly related to international Justice: in Armenia, they helped develop video evidence about the human impact of delay in forced evictions cases, with the goal of lobbying the European Court of Human Rights to prioritize forced eviction, a theme currently considered “low priority.”
In Georgia, N-Map is helping develop a citizen monitoring system for the recently passed convention of rights of disabled people. Through processes of using video for evidence collection, the system provides citizens with ways to monitor enforcement and implementation of their rights (to learn more about NMAP work on the ground, visit their website).
When discussing the opportunities for video as evidence in legal processes, Goldberg strongly pointed out that evidence is only a small part of the power of video. Video does play a crucial role as quantitative evidence: direct, documented and reliable proof of incident, abuse or harassment can easily close a case. However, according to Goldberg, the power of video lies also in qualitative aspects of storytelling for social change.
“You need human stories to make the case. We create the human story but also back it up with quantitative info, which makes it so that you can’t ignore the scope, and the human impact.”
This human impact is instrumental in bringing about change. Video campaigns can act as a bridge that humanizes and grounds large international processes into everyday lives of people.
Devices for capturing video are ubiquitous and exceptionally easy to use: the byproduct of this is an unprecedented tsunami of amateur videos, readily available online. There are videos with potentially crucial evidence about human rights violations, hidden in the midst of this video onslaught. How would one go about filtering, tagging and categorizing this mess of information to find the needle of signal in the haystack of noise?
Eliot Higgins found himself at the forefront of a new paradigm in citizen-based verification. In 2012, he started collecting information about weapons smuggling in Syria and publishing it on his blog, Brown Moses. His sources were thousands of YouTube videos freely available online. Coming from administration and finance, Higgins had no previous experience in weapons — but he had patience, time, and analytical expertise. His research ultimately provided the basis for a New York Times article exposing Saudi Arabia’s smuggling of illegally procured Croatian post-war weapons to Syrian rebels.
The Brown Moses blog represents a new vocation that is becoming an indispensable service — persons with analytical skills and ability to dig through millions of pieces of online evidence in order to find correlations, proof and insight in the flood of online information. As Edwards from Amnesty International pointed out, triangulation is a game changer: if, for example, we combine official reports with satellite imagery, then corroborate with video evidence and establish timelines through social media, we gain a much clearer picture of the events.
Just like old times
When discussing with Goldberg the emerging importance of video in the courtrooms, she pointed out an interesting correlation: back in the ‘60s, civil rights law school students were appalled by the notion that writing press releases would somehow be beneficial to their work. Today, the ability to communicate with the press is considered one of the main strategies for a lawyer, especially in the human rights arena. As Goldberg says:
Lawyers cannot be truly effective without understanding of video: that’s how you make cases, hold government officials accountable. Human stories are just more powerful than words on paper, and seeing it makes the difference.”
This anecdote highlights the importance for legal experts, lawyers and judges both, of embracing new technologies. This is especially important for the international courts, like the International Criminal Court where the sheer scale (and cost) of collecting evidence needs all the help technology can bring, but the courts need to have internal capacity to accept, analyze and act upon this data.
The ICC needs help
The collection of evidence for the prosecution of crimes of extraordinary complexity like genocide, or war crimes, is problematic for many reasons. Firstly, if an international criminal court is prosecuting, it can only start collecting its own evidence once the national legal system relinquishes jurisdiction, which in many cases is too late, because evidence can be tampered with, deteriorate, or disappear. Secondly, the sheer amount of evidence that needs collecting can slow down and sometimes indefinitely stall prosecution. Thirdly, the operational costs are very high: a recent BBC News article shows that the ICC, in its first decade of operation, spent close to a billion dollars, with only one conviction as a result (congolese militia leader Thomas Lubanga, found guilty of recruiting child soldiers).
With this in mind, any means of evidence collection and analysis that can reduce costs and risks, while still producing quality results, would be beneficial.
Edwards recently joined the International Criminal Court's (ICC) Scientific Response Unit as a visiting professional in the Hague where he seeks to address issues about the use of "scientific evidence," which includes technologies, to prosecute crimes at the ICC (more information here).
Amnesty International is in many ways ahead of the curve in how research is used in justice mechanisms, and they present a logical civil society counterpart for complementing ICC efforts. On the other hand, international courts have relatively little case law and jurisprudence on new data streams: Edwards’ role as a visiting professional was mostly about bridging that gap. He explains:
Even if the technology isn’t new, its application in war crimes certainly is. Judges in their sixties and seventies may have very little exposure to new digital streams. Lawyers and judges ultimately have no choice but to become more familiar with technology.
Nothing like the old times
Technology brings powerful, scalable, cheap tools for advocacy. But it also brings a steep, erratic learning curve and a constantly expanding, fluctuating horizon of tools and techniques, new languages and hardware. It is a different culture, a paradigm shift — but one worth embracing. As Edwards points out, collecting satellite imagery is exponentially cheaper today than eight to nine years ago. In addition, commercial providers of satellite imagery recognize their widespread use for remote sensing in political and social events, and are increasingly already in place when incidents need to be documented.
Just like in all other sectors and ages, integrating changing technologies into important societal processes like the ICC will be challenging and unpredictable. But if the outcome is opening up investigation to independent actors and improving the quality of prosecution of the tyrants of the world, it can’t hurt to try.
TechPresident partners with the engine room to surface and connect emerging tactics and initiatives.
Personal Democracy Media is grateful to the Omidyar Network and the UN Foundation for their generous support of techPresident's WeGov section.