by Rosamary Byrne
this blog was originately posted at Oxford University Press Blog
Information now moves at a much greater speed than migrants. In earlier eras, the arrival of refugees in flight was often the first indication that grave human rights abuses were underway in distant parts of the world. Since the advent of the Arab Spring in 2011, the role of new and social media as agents of transformation has become a staple of global assumptions about the power of technology to diversify political expression and facilitate networks for social change. The events of that year also triggered a heightened awareness of the promise of technology to bear witness to human rights violations.
By arming ‘citizen journalists’ with so called ‘liberation technology’ there is now capacity to document human rights abuses on an unprecedented scale. Given the need for better and more individualized evidence of rapidly evolving situations in refugee-producing states, what has been the impact of e-evidence on refugee status determination (RSD)?
New media are conduits for better and more accessible country of origin information. Over the past decade, the production and consumption of human rights documentation in refugee-producing countries has in theory been universalized by new technologies. Diminished costs and rising access have pluralized, if not fully democratized, the use of technology and information, and have increased and diversified the range of actors involved in the communications revolution. Paradoxically, for the many asylum seekers who claim a well-founded fear arising from events that are off the ‘radar’ of mainstream human rights reporting, this creates considerable challenges in terms of establishing the credibility of their claims. A framework for human rights reporting that still leaves much unreported has consequences in a world that presumes the reverse, given the overflow of information through the Internet. In the context of country of origin conditions, immigration lawyer Colin Yeo argues that this overflow ‘imbues us with dangerously false omniscience’.
Emerging technologies have, in principle, radically expanded the sources of country of origin information accessible to asylum seekers and decision makers, and narrowed the time in which information is received. Their potential, however, is significantly under-realized. The process of identifying country of origin information from new media sources is proving to be cumbersome, demanding expertise, time, and resources that are beyond the capabilities of officials and claimants alike.
Notwithstanding this, RSD authorities increasingly expect that sufficient information will be available that can meet the standards of evidence required to corroborate testimony in genuine asylum applications. In the United States, the RSD process increasingly relies upon the provision of expert reports and corroborating documentation to supplement the core of a claimant’s testimony. Yet underlying the expectation of corroboration is the presumption that such information will be available in the first place, given the resources accessible, with a few clicks of a mouse. Many asylum seekers are ill-equipped to provide this evidence, and when it is presented in the form of new media, decision-makers are disinclined to assess it. When addressed by the European Asylum Support Office (EASO) in its guidelines on processing country of origin information, new media was identified as a ‘dubious’ evidence source. Within RSD, the potential of the Internet and new technology is compromised by the fact that they fail to satisfy two of the core criteria for evidence required with respect to country of origin information: traceability and reliability of the source. It is not surprising that EASO’s perspective is shared widely by national decision-making authorities.
The tools of documentation include not only the Internet and new media, but a wide range of new communications and digital technology, including smartphones. These new technologies allow for real-time collection of human rights evidence as events unfold and abuses are committed, changing the way we witness and document human rights violations. Real-time human rights reporting in the cybersphere should, in principle, make it more difficult for country of origin information to acquire what Guy Goodwin-Gill and Jane McAdam have described as the ‘artificial quality of freezing time’, whereby decision makers accord single events a distorted significance. External sources of information from the Internet reflect the fluid nature of human rights situations and extend beyond traditional reports of media, NGOs, and civil society. The consequent volume of material is overwhelming. Roughly 30,000 new information items are added to UNHCR Refworld and the Austrian Centre for Country of Origin Information (ACCORD) each year. This implies access to more than 300,000 documents covering country of origin information and refugee-related legal and policy instruments, cases, and materials.
The potential of this abundant country of origin information and corroborative evidence depends on whether it can be accessed effectively, and if it can be authenticated and found to be reliable. E-evidence that asylum seekers can use to corroborate their oral testimony includes: official documents; digitally generated images and encoded audio and video recordings; ‘born-digital’ format files such as text and word processing files; crowd-sourced information such as web pages, blogs, Twitter posts, and other social media; networked communications such as email and text messages; and content recorded on mobile phones. As O’Neill et al note in their comprehensive examination of the complexities that attach to the use of e-evidence in criminal prosecutions, each type of e-evidence has different technical indicators of authenticity and reliability. In international human rights fora, the methods used to assess e-evidence are determined on a case-by-case basis in the absence of rules that address the categorical distinctions between sources of technology. Given the propensity for technology to outpace directive guidelines, this discretionary approach towards e-evidence is largely adopted by domestic courts and by administrative regimes responsible for asylum. Consequently, there is no standard protocol on e-evidence to guide RSD.
The power of e-evidence is linked to the capacity of individuals and organizations to satisfy the criteria required for effective authentication and reliability. The expertise required for this is not to be presumed, since it involves technical skills related to methods of collection and preservation, authentication practices, and chain of custody procedures. Organizations training NGOs in this field are strikingly few. For human rights evidence to be legally viable, there must be widespread grassroots awareness of the technical criteria that will be applied to e-evidence in legal fora, be they national or international criminal courts, human rights bodies, or RSD authorities. The challenge for the international human rights community is to construct an effective training framework to enhance the quality of e-evidence.
Rosemary Byrne is an Associate Professor of International Law at Trinity College Dublin, a Member of the Scientific Committee of the EU Fundamental Rights Agency, and a former Commissioner of the Irish Human Rights Commission. Her recent article ‘The Protection Paradox: Why Hasn’t the Arrival of New Media Transformed RSD?’ is published in the International Journal of Refugee Law and is free to read online for a limited period.