Q&A: Using open source investigations in human rights litigation
Evidence gathered from open-source investigations (OSI) is being increasingly relied upon in human rights litigation before a range of domestic, regional and international courts and tribunals.
Open-source intelligence (OSINT) refers to information obtained from publicly available sources such as social media, online forums and satellite imagery, and subsequently independently verified.
EHRAC’s own journey in OSI began with the case of Ponomarenko and others v Ukraine and Russia, when we commissioned digital investigations agency Forensic Architecture to gather and present evidence of Russian military presence in and around Ilovaisk in August 2014.
Forensic Architecture created an interactive online ‘Platform’, presenting information identified and verified using OSI, which EHRAC relied on as evidence when representing 25 applicants before the European Court of Human Rights. This was the first time that evidence of this type had been submitted to the Court.
OSINT can be a highly effective method of complementing and corroborating other types of evidence, but where should lawyers interested in using OSI in their work start, and what are some of the best techniques and tools to use?
We interviewed Alexa Koenig, Executive Director of the Human Rights Center at Berkeley Law School, and director of the centre’s Technology and Human Rights programme, and Sam Dubberley, head of Digital Investigations at Human Rights Watch, about getting started using OSI in litigation and some of the key challenges and risks to look out for.
What are some of the pros and cons of using OSI as evidence in litigation?
There are both pros and cons to using open source information as evidence in litigation. A significant pro is its ability to complement more traditional testimonial, physical and documentary evidence. Incorporating such digital data allows for triangulation and corroboration of survivors’ testimonies.
Perhaps one of the greatest pros is how it can strengthen investigation planning, by helping investigators better understand the information that is available to them, and helping them identify potential evidence that might exist (including by providing clues to potential eyewitnesses, physical evidence, etc.). OSI can also help lawyers identify people who may have relevant perspectives and experiences that may not have traditionally been on their radar.
Cons include the relative lack of training that legal investigators, lawyers and judges receive in open source investigation methods. There aren’t a lot of formal training opportunities in law schools or elsewhere. Another con is the sometimes unexpected psychological toll of dealing with large quantities of graphic imagery related to atrocities that give rise to legal claims. While really important safeguards have been created to minimise the psychological harm that can come from watching thousands of videos of horrific acts, most lawyers and investigators never receive the psychological, security or ethics training that are so important to minimising potential harms to themselves, as well as victims and others implicated in the work.
How can a lawyer get started with using OSI in their work?
There are a few introductory routes a lawyer can take. One is to read both offline and online materials. A resource we created with Daragh Murray is the book Digital Witness: Using Open Source Information for Human Rights Investigation, Documentation and Accountability (Oxford University Press 2020). The book is an introduction to open source investigation methods, as well as OSI’s history, and relevant ethical and security considerations. It includes contributions from some of the best open source practitioners and academics in the world.
Lawyers can also familiarise themselves with the Berkeley Protocol on Digital Open Source Investigations, which lays a foundation for the use of open source information in legal practice and includes helpful templates for investigation planning and other processes. There are also a tonne of free online resources, including tutorials from digital investigator Ben Strick, Amnesty International, and Bellingcat.
Finally, several organisations provide formal, paid classes. UC Berkeley’s Human Rights Center partners with Institute for International Criminal Investigations in The Hague on a five day introductory course aimed at legal practitioners, as well as a five day advanced course that will launch this spring. Bellingcat offers trainings aimed at a range of practitioners. Michael Bazzell has a particularly famous course taken by a lot of people in law enforcement and other areas of practice.
What are some of the best tools and techniques to employ in OSI?
It’s really important to start with principles, like those included in the Berkeley Protocol, many of which are important for any form of research. Those principles can help with understanding and identifying which tools and techniques will be most helpful to and appropriate for your investigation.
I also strongly recommend Annex V in the Protocol, which lists a number of considerations for adopting a new tool or technique, such as who owns it, who will have access to collected data, and the product’s likely lifespan. That said, InVid is one of our favourites – it’s sort of a Swiss army knife of OSINT in that it allows you to easily conduct a technical and content analysis of visual material, such as photos and videos, whether you have a hard drive of those items or find them online.
As for methods, it’s important to build online search skills and verification skills, and to understand how access and human and machine biases might interfere with an objective search. On the team at Berkeley, Brian Nguyen has spent a lot of time exploring tools that help to automate capture and analysis of large datasets from social media, such as pinpoint. Really helpful are the many dashboards that open source investigators have created, which compile a number of useful tools (most free) in one place. An example includes that put out by OSINT combine. Finally, the team at Berkeley is a huge fan of Hunchly, which allows us to forensically capture every search we make during an online investigation.
What are some of the main challenges and risks when working with open source material?
There are challenges and risks that come at every link in the chain of information, from capture to courtroom. First, did those close to where relevant events occurred have the training to know what kinds of visual information would be most helpful to legal investigators, and capture it? This means not only capturing the killing or the bomb falling, for example, but surrounding details that can help investigators confirm the date, time and location of the event. Witness’ Video as Evidence field guide can be really helpful on that front.
Second, if those who capture the content share it through social media or other technical means, what is the likelihood that information will get into the hands of legal actors, if legal accountability is a goal? Will the content be removed by platforms before it’s ever seen? Do investigators know the slang and hashtags that are affiliated with the kinds of information that will be helpful to their cases?
How people tag and talk about events online is really different from offline communications – and can radically vary from platform to platform. Will the information be preserved with all of the contextual information that will strengthen its use for courts? And then do all actors at every link in the chain understand the digital, physical, psychosocial and legal risks of sharing, finding, capturing, and using that data?
What does the future look like for OSI in the context of human rights?
I suspect that an increasing number of universities will either bring on some form of open source investigation lab, or at least incorporate digital open source research methods into their curricula. We’ll probably see more and more information shared over encrypted channels relative to social media sites. We may also see the emergence of a conflict agnostic global repository for digital open source content – one that allows for the long-term preservation of short-lasting digital content, and that centralises the process of finding and verifying digital data for court purposes.
We will also see an increasing amount of OSI make its way into investigation planning, investigations, and ultimately courtrooms. Unfortunately, we will also likely see major resource disparities that affect what lawyers are able to do with that data. I think we’ll also see increasing diversification of who is conducting open source investigations and who is recognised for doing the work. This diversification will span gender and geography, age, race, ethnicity and more.
Finally, I suspect we’ll see increasing use of object detection and natural language processing to help deal with the scale problem, helping to bring the amount of digital data that legal investigators have to comb through down to human levels.
