“The Berkeley Protocol on digital and open source investigations” is the first international protocol on using social media as evidence of human rights violations. A joint publication of the UN Human Rights Office and UC Berkeley’s Human Rights Centre it offers global guidance on using public digital information. Alexa Koenig, Executive Director of the Berkeley Centre and Lindsay Freeman, Director of law and policy for the Centre, talk about its genesis.
The UC Berkeley Human Rights Center pursues justice through science and law, and, in more recent years, technology. With the rapidly increasing use of smartphones, social media, and an abundance of potential evidence in the form of online videos, photos, and other posts, over the past decade the Human Rights Center has turned its focus to exploring how this open source material could be used to advance international justice. As word got out about our work, we started receiving calls from organizations all around the world asking us questions about how to collect and analyze digital content. The calls came from the Middle East, Europe, Asia, and the Americas, from diverse non-governmental organizations that were generating, finding or receiving user-generated content. We realized that we were not alone in struggling to make sense of this relatively new field of practice and that we needed to meet the moment.
So, a diverse group of legal practitioners and human rights researchers gathered in the small Italian village of Bellagio in October 2017 to discuss the opportunities for and challenges of using digital evidence derived from the internet in international criminal and human rights cases.
The group also included individuals who had been involved in the development of existing international guidelines and protocols. After several days of discussion, presentations on past cases, and identifying the many open questions circulating in this emerging field, the group reached a consensus: the international justice community urgently needed written guidance on how digital open source information could and should be used in international investigations and prosecutions.
A lot of research done
The UC Berkeley Human Rights Center’s long history of researching issues at the cross section of science, technology and law meant we were well-placed to spearhead this effort. Shortly after announcing this initiative, the United Nations Office of the High Commissioner for Human Rights (OHCHR) joined the project, officially coming on board as our partner. With several UN commissions of inquiry and fact-finding missions confronting the need for digital open source investigation skills — due to the increased use of smartphones and social media, as well as an increased reliance on remote research due to insecurity on the ground — the UN was an obvious and important collaborator.
We were energized about the journey ahead, but realistically daunted by this beast of a task. Where do we begin? Two existing international protocols — the Minnesota and Istanbul Protocols — offered a preliminary roadmap. However, our subject matter was significantly different. While the Istanbul Protocol, which provides standards for investigating torture, and the Minnesota Protocol, which provides standards on how to investigate extrajudicial killings, were able to draw on the expertise of a well-established professional community of forensic scientists, no clear community of professional open source investigators existed.
Since national lawyers were already using social media and other digital open source information in legal practice, there was some useful guidance. Yet, not enough jurisprudence existed to identify clear commonalities across jurisdictions. In the field of international justice, we were in uncharted territory.
International justice includes criminal prosecutions, but also alternative means of accountability beyond the courtroom, such as truth commissions and other transitional justice processes. Thus, the protocol had to meet the needs of diverse practitioners working across multiple jurisdictions and for multiple use cases. The standards and procedures would have to apply across disparate types of investigations and institutions to assist all manner of open source investigators. In addition to lawyers, the world’s advocates, journalists, and social science researchers had also been reaching out to us and to others for guidance on how to collect and manage this information without jeopardizing its potential value in court.
“Technology agnostic” guidance
In developing the protocol, we faced another challenge: digital technologies were developing at a faster pace than the scientific methods underpinning them. Most reports and articles on the topic had quickly become obsolete due to significant technological change since their publication.
This created another hurdle — how do we future proof the protocol so that it remains relevant? Early on, we made a conscious choice to make the protocol technology-agnostic by not referring to specific platforms or tools. Rather, we focused on principles and processes, establishing a framework that could balance the need for scientific predictability with the adaptability necessary for a quickly changing digital world.
While the use of open source information in investigations is longstanding, the volume and diversity of digital open sources were growing with the ever-expanding use of the internet. The internet’s dynamic information environment was becoming further complicated with the rise in digital manipulation, disinformation and misinformation disseminated at tremendous speed and scale Therefore, the protocol would have to address both the challenges that arise when handling digital information and evidence, as well as the unique questions that come with verifying information and evaluating the credibility and reliability of online accounts, many of which are anonymous or pseudonymous.
The resulting document was ultimately developed through more than 150 consultations and interviews with a diverse range of practitioners from various disciplines and diverse geographies. This was accompanied by four workshops, through which practitioners tackled a series of relevant issues, ranging from the use of sock puppet accounts to ethics. From the start, we integrated ethical and legal considerations into the methodology, ensuring that all recommendations were consistent with the basic precepts of human rights. For example, we recommended measures to ensure that open source investigations balance the need for fact-finding and establishing the truth with the responsibility to respect and protect individuals’ rights to privacy. We also placed safety and security (physical, digital and psychosocial) at the heart of our recommendations. Multiple drafts were reviewed by the protocol’s Editorial Committee and other experts. And, of course, all of this was supplemented by open source research.
One of the most significant and productive steps we took was workshopping the protocol as it developed, testing our materials in real-world investigations. We consulted with a handful of international organizations — both governmental and non-governmental — and helped them develop their internal policies and procedures consistent with the protocol. Those organizations then tested the proposed methodologies in practice and gave feedback on how to balance the need for set standards with the demand for flexibility — both to ensure utility for a range of organizations and contexts, but also to allow for continued innovation and strengthening of this field of practice. We further field tested portions of the protocol in our Investigations Lab, where students are both trained in and use these methods in investigations for journalism, advocacy or legal accountability purposes.
During the three-year development process, a robust professional community of digital open source investigators who are concerned with international justice and accountability has emerged to meet the challenges and opportunities brought about by new digital technologies and information-sharing platforms. Over the last year, as we finalized the text, we also developed a program to train lawyers, investigators, journalists, and human rights advocates to the protocol’s standards. As of today, we have trained civil society organizations from countries as diverse as Venezuela, Chile, Brazil, China, Turkey, Australia and Syria. We have also provided professional training in partnership with the Institute of International Criminal Investigations in The Hague and the UC Berkeley School of Journalism’s Advanced Media Institute, and helped develop material for — and learned from the contributors to — the first human rights textbook on digital open source investigations.
While the protocol’s creation has required a herculean effort involving hundreds of people over the course of the past several years, we see the Berkeley Protocol as a foundation on which this community of practice can continue to build. This is just the beginning, and we invite others to develop, adapt, and refine these standards as we collectively work to ensure justice for the world’s gravest crimes.
The views expressed are those of authors and do not reflect the opinions or views of the UN Human Rights Office.