Digital Eyewitnesses: Using New Technologies to Authenticate Evidence in Human Rights Litigation.

• Author: Ulbricht, Bailey R.

Table of Contents Introduction I. Evolution of Human Rights Documentation. II. The Emergence of Safe-Storage Technologies A. Defining Hashing and DLT 1. Hashing: creating the digital fingerprint. 2. Distributed ledgers and blockchain: long-term safe storage. B. Hashing and DLT in Human Rights Litigation III. Authenticating Digital Evidence Stored Using Hashing and DLT Without Witnesses A. General Evidentiary Requirements for Authentication B. Hashing and DLT as Self-Authenticating C. Other Doctrines for Authenticating Digital Evidence Without Witnesses. 1. Chain of custody 2. Silent-witness theory 3. Distinctive-characteristics doctrine 4. Reply-letter doctrine. D. Best Options for Authenticating Digital Evidence Without Witnesses. E. Vulnerabilities. 1. Unsubstantiated collection or capture. 2. Hearsay and the constitutional right to confrontation 3. The continued importance of live witness testimony IV. Considerations for Judges, Juries, and Human Rights Organizations A. Guidelines for Judges and Juries B. Considerations for Human Rights Organizations and Litigants Conclusion Introduction

On October 7, 2020, the Department of Justice announced the indictment of two former British citizens suspected of membership in an infamous Islamic State of Iraq and Syria (ISIS) trafficking cell known as "The Beatles." (1) Defendants Alexanda Amon Kotey and El Shafee Elsheikh had allegedly participated in the kidnapping, torture, and murder of civilian hostages, including four American citizens, in Syria from 2012 to 2015. (2) Because the Department of Justice struggled to access physical evidence, the indictment cited emails to the victims' families coordinating ransom negotiations--combined with voice memos, images of beheadings, and audio that the hostages were forced to record--to piece together the suspects' roles in ISIS. (3) The evidence used in this case reflects a broader trend in human rights and international criminal litigation: In pursuit of accountability, prosecutors are leaning on digital evidence in lieu of traditional evidentiary sources such as live witness testimony. (4)

But the increasing reliance on digital documentation in human rights settings is brushing up against the constraints of evidence law. To prevent unsubstantiated evidence from reaching the trier of fact, the U.S. legal system requires evidence to be authenticated before it can be admitted. (5) For an item of evidence to be authenticated, its proponent must produce sufficient additional evidence to establish that "the item is what the proponent claims it is." (6) For digital evidence, this supporting proof can take the form of testimony from individuals with personal knowledge regarding the creation of the digital object. The author of an email, for example, can vouch for its authenticity. (7)

The authentication requirement poses acute challenges in human rights litigation, because crimes committed on battlefields abroad often do not generate readily accessible witness testimony or physical evidence to authenticate the digital record. Indeed, the challenge of introducing admissible evidence of human rights violations has thwarted efforts by the United States and its allies to prosecute foreign fighters. (8) Testifying before the Senate Foreign Relations Committee, violent-extremism expert Lorenzo Vidino explained that as of 2017, only 54 of the 400 British foreign fighters "known to have returned back from Syria and Iraq" had been convicted--in large part due to a "lack of actionable evidence." (9)

The difficulties facing the prosecution in the Kotey and Elsheikh case are shared by many who seek to hold human rights abusers accountable. Governments, human rights NGOs, and individuals have collected mountains of digital evidence documenting abuses taking place all over the world, from war crimes in Syria to violence against Black Lives Matter protestors in Washington, D.C. (10) At the same time, finding live witness testimony to authenticate digital evidence is challenging. For a particular incident, there may be no surviving witnesses, no logistically accessible witnesses, or no witnesses who can safely testify without reprisal. (11) Thus, in today's accountability proceedings, digital evidence--including communications, data, video, and images--often serves as the only "eyewitness" shining light on human rights abuses. (12) Yet the U.S. legal system has lagged behind in adapting evidence law to address the realities of the digital age. Courts continue to prioritize witness testimony, even when evaluating the admissibility of evidence generated by mechanistic processes. (13)

There is an emerging need in legal scholarship to explore how human rights violations are prosecuted when digital evidence predominates. Although the benefits of digital tools are becoming widely recognized in the human rights space, (14) little has been written about whether and how digital evidence can be admitted in formal accountability proceedings. Some scholarship has questioned whether witnesses should be required for authentication, arguing instead that authentication should focus on the process of collection, (15) which could better leverage new technologies. Other scholarship has discussed the influence of technology on the legal system generally. (16) But little scholarship has analyzed digital tools in the litigation context. And no scholarship has assessed whether cryptographic hashing and distributed-ledger technology (DLT) satisfy authentication requirements or provided recommendations for courts using these tools.

This Note fills these gaps by analyzing how hashing and DLT can safeguard digital evidence and facilitate its admissibility under U.S. law. In doing so, the Note emphasizes, these technologies can democratize accountability by supplementing the record when a dearth of available witnesses threatens to undermine efforts to achieve justice. Though these technologies have the potential to be used in jurisdictions around the world, we focus on the United States, which has stricter admissibility rules than most civil law systems. (17)

The Note proceeds as follows. Part I provides background on the current challenges facing human rights documentation. Part II defines and outlines the key features of hashing and DLT. Part III then explores the potential for these technologies to facilitate the authentication (and thus the admission) of digital evidence. It also considers potential problems with the widespread use of digital evidence given the benefits of witness testimony. In light of this analysis, Part IV offers recommendations for how U.S. courts should approach digital evidence that relies on cryptography and DLT for authentication.

1. Evolution of Human Rights Documentation

   The importance of preserving and authenticating records of human rights violations is not new to the digital age. In the aftermath of World War II, the prosecution of Nazi leadership at the International Military Tribunal at Nuremberg relied on the regime's detailed physical records of its operations, which had been seized by Allied forces. (18) Accordingly, some defendants sought to undermine the credibility of documents that were unsigned or misdated. (19) In response, the tribunal looked to the meticulous preparation and preservation of the documents to establish "their authenticity and substantial truth." (20) The prosecution supplemented documentary evidence with recordings of, for example, mass graves captured on film by Allied forces. (21) This "[g]rim evidence of mass murder[]" powerfully substantiated the atrocities outlined in the written documents. (22)

   The ensuing convictions predicated on the records and footage proved that detailed, secure documentation of human rights abuses can serve as a foundation for accountability. (23) In the same era, the Universal Declaration of Human Rights and the U.N. Charter articulated novel human rights principles "as a common standard of achievement for all peoples and all nations." (24) Responses to the atrocities committed during World War II thus projected the aspirational (if oft-unfulfilled) message that it was unacceptable to deny individuals the enjoyment of certain fundamental rights, and that individuals could achieve some redress by documenting violations of those rights.

   In the postwar period, the steady development of international institutions and rapid advances in technology increased the breadth and sophistication of human rights abuse documentation. On the legal side, the international community began to establish more robust bodies to enforce human rights protections. The U.N. created its Commission on Human Rights in 1946, (25) and regional bodies followed. (26) Tribunals were established to prosecute grave violations of fundamental rights, first on an ad hoc basis (to address conflicts like those in the former Yugoslavia and Rwanda) and later on a permanent basis with the formation of the International Criminal Court (ICC). (27) Meanwhile, countries ratified core human rights treaties, accepting obligations to provide domestic redress for human rights violations. (28) Taking advantage of these new forums for human rights claims, civil-society groups documenting human rights violations also proliferated--including Amnesty International, founded in 1961, (29) and Human Rights Watch, founded in 1978. (30) Throughout the latter half of the twentieth century, civilians, journalists, and civil-society groups worldwide kept physical records of human rights abuses in the pursuit of justice. (31)

   In the new millennium, the advent of the digital age transformed the process of human rights documentation, allowing anyone with a cell phone to record human rights violations and anyone with internet access to broadcast content to the world. These developments helped to propel movements like the Arab Spring across national boundaries. (32) Perhaps no conflict better demonstrates this evolution than the civil...