How can the technology sector and the legal profession collaborate to preserve prohibited user-generated content for use in legal proceedings?

Project outline

The Blavatnik School of Government at the University of Oxford announces a new research partnership between the School’s  Programme on International Peace and Security (Oxford IPS), part  of the Institute for Ethics, Law, and Armed Conflict (ELAC), the  International Bar Association (IBA), and UC Berkeley Human Rights Center (Berkley HRC). Under the leadership of Federica D’Alessandra (BSG) and Alexa Koenig (HRC), with the expert input of Visiting Fellow of Practice Lindsay Freeman this research project will address one of the more urgent and vexing problems in the international criminal justice field today: the preservation of social media evidence.

Social media platforms run by private companies have become the de facto record-holders of atrocity documentation. They are the main means by which witnesses, journalists, citizen reporters and first responders share their observations, videos and photographs with the international community. They are also the channel through which perpetrators occasionally disclose information about their illegal activities (for recruitment, intimidation, or other purposes), and they are increasingly used as a tool to spread disinformation, distribute propaganda and incite violence.

These platforms have become our historical records and evidence archives, even though they do not have the incentive or infrastructure to properly and indefinitely preserve this content, nor the power to proactively share it with the appropriate authorities. In fact, many of these companies are incentivised to do the opposite. The rate at which potentially relevant and probative content is removed is rapidly increasing as political and public pressure to remove harmful content mounts against them.  Private technology companies should not, nor do they want to be, the custodians of evidence of international crimes. 

At the same time, most international justice and accountability mechanisms lack the investigative authority to compel these companies to preserve social media content--even when its evidentiary value is obvious--and disclose it. Without full and fast-responding cooperation from state authorities in the country in which these companies reside, valuable digital evidence and historical records are permanently destroyed. International justice and accountability mechanisms should be empowered to preserve and compel evidence of war crimes, crimes against humanity and genocide. 

This project will develop policies to address this problem. Building on the Berkeley HRC’s work on digital open source investigations, and the Oxford IPS’s work on improving investigations and documentation of atrocity crimes, this project will: (1) address the relevance and probative value of user-generated content to international legal proceedings; (2) describe the significance of preserving the integrity of user-generated content in a forensic manner so that it can be used in legal proceedings, and the consequences of failing to do so; and (3) clarify the requirements for and purposes of sharing relevant user-generated content with international and regional legal authorities. This project will look at how rules around information-sharing and disclosure differ for technology companies based on whether the request is made by a domestic or international legal authority. It will also assess whether an international investigative mandate could be vested with the power to compel content directly from technology companies through an innovative legal mechanism.

Project aims

  • Change the way in which technology companies make decisions about when and how to take down violative content from their platforms (in a way that balances privacy, freedom of speech, and freedom of expression, without contributing to the incitement of violence).
  • Provide guidance on how to approach the storing and disclosure of such content to authorities when this can constitute digital evidence that might assist in prosecutions of serious international crimes.
  • Provide guidance on the handling of internet-based digital evidence.
  • Break down barriers between the legal profession (namely, government agencies, human rights lawyers, and domestic and international prosecutors) and the technology sector.
  • Create partnerships between the relevant members of government, private sector, and civil society to address the increasing role that technology companies play in justice and accountability processes.

Project outcomes

  • Publication of a report setting out guidance, best practices, and recommendations. The final report will be jointly published by the IBA, Oxford IPS, and Berkley HRC. It will be made available on their respective website and distributed to IBA membership.
  • Provide an open space for discussion and dialogue between technology companies and the legal profession.