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Publication Date

7-12-2023

Abstract

Advances in information technology have irrevocably changed the nature of war crimes investigations. The pursuit of accountability for the most serious crimes of concern to the international community now invariably requires access to digital evidence. The global reach of platforms like Facebook, YouTube, and Twitter means that much of that digital evidence is held by U.S. social media companies, and access to it is subject to the U.S. Stored Communications Act.

This is the first Article to look at the legal landscape facing international investigators seeking access to digital evidence regarding genocide, war crimes, crimes against humanity, and aggression. It analyzes Republic of Gambia v. Facebook(Meta), the first case to seek digital evidence from a U.S. social media company for an international proceeding on genocide. And it draws on material gleaned from background interviews with international investigators seeking digital evidence held by U.S. social media companies in relation to atrocities in Myanmar and Ukraine. This reveals two key problems facing international investigators. First, and in contrast to their counterparts in domestic criminal investigations, the Stored Communications Act provides no pathway through which international investigators can overcome the prohibition on disclosure of private digital evidence. Second, the ability of international investigators to access quasi-public digital evidence, and/or digital evidence that was public but has been removed by a social media company, is at the discretion of the social media company. A significant risk emerging from this arrangement is that evidence disclosure decisions are not made in a consistent and principled manner, but are instead driven by the self-interest of a few U.S. corporations, creating disparate outcomes across victim groups.

The Article recommends two, non-exclusive, reforms that could be undertaken in the short term to advance principled disclosure decisions for accountability, while ensuring privacy protections and data security. It also urges U.S. social media companies to develop and publish their own interim guidelines on how they make evidence disclosure decisions, with a presumption in favor of disclosing removed public and quasi-public evidence needed for the pursuit of accountability for the international crimes of genocide, war crimes, crimes against humanity, and aggression. The Article concludes by pointing to the need for a long-term incremental process of research, reform, and review to future-proof U.S. law for war crimes accountability in the digital era.


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