Human rights abuses are increasingly documented through smartphones and personal cameras, generating hundreds of terabytes of digital content from Idlib to Minneapolis. While digital evidence provides an important opportunity to democratize the documentation of abuses, the quantity and diversity of this data present challenges for those seeking accountability. Legal advocates must find ways to safely store digital content, parry attempts at manipulation or corruption, and eventually ensure authentication before a court of law. Should litigation arise, the individual who created the digital record is often unreachable or otherwise unavailable to testify, further complicating the underlying legal questions. NGOs and legal advocates have increasingly adopted two new tools—cryptographic hashing and distributed-ledger technology (DLT)—to clear these hurdles. In addition to imbuing civilian-generated evidence with a greater sense of legitimacy and providing immutable protection, these technologies help human rights documentation satisfy U.S. standards for admissibility of evidence.
Existing legal scholarship has neither examined these technologies as they relate to U.S. authentication standards nor scrutinized whether they support authentication without witness testimony. There is also a dearth of scholarship that (1) deconstructs and explains these technologies for a legal audience; and (2) provides specific recommendations for courts and litigants. This Note fills these gaps by arguing that, with or without witness testimony, these technologies can support the authentication of digital evidence under U.S. statutory and common law requirements. In doing so, it creates a roadmap for how cases that rely on digital evidence can proceed in U.S. courts. Ideally, this roadmap will help to democratize accountability by facilitating new opportunities for justice where admissibility issues previously foreclosed litigation.
* J.D. Candidates, Stanford Law School, 2022. We owe our deepest gratitude to Professor Beth Van Schaack for her invaluable guidance, as well as to the members of the Fall 2020 Stanford Human Rights & International Justice Policy Practicum for their support. We are indebted to Jonathan Dotan, Stephen Honan, Lindsay Freeman, Riana Pfefferkorn, David Alan Sklansky, and David Freeman Engstrom for feedback during the research and drafting process. Thanks also to our peers on the Stanford Law Review—Konadu Amoakuh, Kylie Choi, Olivia Goldberg, Chris Huberty, Hannah Hunt, Daniel Khalessi, Matt Krantz, David Levin, Marisa Lowe, and Grace Rehaut—for their incisive edits. We reserve our greatest admiration for the human rights practitioners testing digital strategies in the field, along with those risking their lives every day to collect evidence of human rights abuses.