Nearly every aspect of our life is impacted by digital technologies manufactured and sold by companies. Legislative frameworks to limit the harms of such technologies have been slow to develop and remain entangled in controversy.1 The expanding role of digital technologies has been accompanied by a disturbing descent into authoritarianism in many countries that is also, in part, fueled by these very same tools.2 The decline of liberal democratic institutions is said to be linked to various properties of the digital ecosystem—from security flaws in popular applications used by states to engage in covert and remote surveillance3 to the development and exploitation of social media algorithms that push violent and divisive content.4 There is no doubt, then, that digital accountability research—which we define as evidence-based research seeking to track and expose risks to civil society in the digital ecosystem—is critical. This essay highlights the legal and ethical challenges faced in digital accountability research and concludes that a comprehensive and global ethical framework for such research is a critical step forward. As legal frameworks and norms continue to shift with respect to digital accountability research, such collaborative, international norm-setting would help ensure that digital accountability research continues.

Over the past decade, the field of digital open-source investigations has both expanded and matured. Open source investigations rely on information that anyone can access from the Internet, and have been increasingly deployed by legal investigators, human rights researchers, and journalists. The investigatory methods include Boolean searches; sourcing videos, photographs, and other data from social media; determining locations of events by comparing photos and videos to satellite images; mining the deep web for government records; determining time of day by analyzing shadows in photos; and more. In this essay, I argue that digital open-source investigators can (and should) rely on a three-step process when faced with an investigations-related dilemma: (1) identifying what the law says they can or cannot do according to their professional identity, intended purpose, and relevant jurisdiction; (2) soliciting guidance from their professional code of ethics (if they have one); and (3) weighing their options against the values of safety, accuracy, and dignity. Given space constraints and prior coverage of the first two steps, I focus here on step three. The values of safety, accuracy, and dignity arguably apply to all open-source investigations and investigators, regardless of jurisdiction or professional identity, and their application reflects a relatively novel attempt to help set ethics-based boundaries around investigation-related activities.

The use of digital evidence increases concurrently with increased digitalization of the larger world and of justice processes. This essay aims to address the use of digital evidence in interstate disputes and other disputes involving states. It focuses on the case law of two international arbitral bodies—the Permanent Court of Arbitration (PCA) and the International Centre for Settlement of Investment Disputes (ICSID)—and of the International Court of Justice (ICJ). The analysis discloses three main concerns when dealing with digital evidence: authorship, authenticity, and chain of custody. We propose that courts create permanent and ad hoc digital forensic expert committees to draft guidelines and perform a preliminary admissibility evaluation of digital evidence.

Digital evidence has the potential to transform the accountability landscape. However, several obstacles must be overcome to use it effectively for war crimes prosecutions. The availability of digital evidence can be impacted by a range of factors, from Internet connectivity to removal of content by platforms to the difficulty of identifying relevant content through the fast pace of social media. The reliability of digital information is increasingly being called into question because of deliberate disinformation campaigns by parties to conflicts, as well as the fear of media manipulated by Artificial Intelligence (AI). And questions around chain of custody and admissibility of digital evidence have not fully been resolved by international courts. This essay unpacks some of these challenges. It suggests some ways in which governments and big tech should seek to ensure access to digital spaces and put in place measures to increase the integrity of online content, and how investigators and lawyers can gather, authenticate, archive, and establish chain of custody to ensure it can be used in accountability processes.

Digital evidence is rapidly emerging as a tool for migration authorities in refugee status determination (RSD)—the procedure for determining whether a person meets the criteria for protection as a “refugee.” Its growing popularity may be seen as a response to the relative dearth of “hard” evidence in asylum procedures, where decisions often hinge exclusively on the applicant's personal narrative and assessment of her credibility. In this essay, we critically examine the growing use of digital evidence in RSD by authorities and the human rights concerns that arise from some of these practices. We then move to outline some examples of how digital evidence might also present new opportunities for scholars, practitioners, and asylum seekers themselves, helping to substantiate claims and document underlying inequities in existing RSD practices. In the process, we seek to navigate a balance between the techno-solutionism that hails digital evidence as a panacea and those a priori dismissing digitization as techno-hype and inherently problematic.