Legal Considerations for Electronic Evidence, Part 5: Original vs. Duplicate Documents & Unfair Prejudice

This is the fifth and last post in a series discussing a legal opinion that focuses on establishing electronic documentation as evidence for legal proceedings within the United States legal system.  The opinion was written in response to a case  in which both parties submitted emails as evidence to support their claims, but the judge found that neither had taken sufficient steps to establish the admissibility of electronic evidence and dismissed both sides’ motions without prejudice so that they could do the necessary footwork and resubmit.  At the same time, the judge took advantage of writing the opinion to pull together a comprehensive review of extant precedent on electronic evidence in order to create a resource for future counsel relying on electronic documents as a source of evidence.  The judge writes concerning five issues that must be addressed when submitting electronic evidence–just as would be done for paper evidence.  The issues are: relevance, authenticity, hearsay, original or duplicate documentation, and unfair prejudice.

The discussions posted here are based on commentary presented in the Memorandum Opinion for the case “Jack R. Lorraine and Beverly Mack, Plaintiffs v. Markel American Insurance Company, Defendants.  Civil Action No. PWG-06-1893,”  heard in the United States District Court for the District of Maryland.  The opinion was written by Paul W. Grimm, Chief United States Magistrate.  For an overview of the case, please see the post “Legal Considerations for Electronic Documentation in the U.S.“

The current post considers two issues–original versus duplicate documents and unfair prejudice.  The first issue considers whether duplicates of certain types of original documents can stand as evidence in a case, while the second issue considers the possible harm that a potential piece of evidence could cause if it is admitted for a case.  This evaluation is the final hurdle that a document must cross before it can be fully accepted as a piece of evidence.

–Sarah

The Original Writing Rule

One of the last steps in determining whether electronic documentation can stand as evidence  is to prove that the contents of the document are indeed…the contents of the document.  This is accomplished by applying the the “original writing rule,” which, “…requires an original or duplicate original to prove the contents of a writing, recording or photograph unless secondary evidence is deemed acceptable” (Lorraine v. Markel, Pp. 83):

…the key to the rule is to determine when the contents of a writing, recording or photograph are being proved, as opposed to proving events that just happen to have been recorded or photographed, or those which can be proved by eyewitnesses, as opposed to a writing or recording explaining or depicting them (Ibid).

In short, this step is about proving the document, not the events captured or reflected in the document.  For the purposes of proving the content of a document, the original piece of writing, photograph, or audio recording is, of course, the strongest proof of content, but in most cases a duplicate of the original can stand in for the “original writing.”  According to Federal Rule of Evidence 1003, “duplicates are co-extensively admissible as originals, unless there is a genuine issue as to the authenticity of the original, or the circumstances indicate that it would be unfair to admit a duplicate in lieu of an original” (as cited in Lorraine & Mack v. Markel, p. 84).  Thus, as a result of this rule, duplicates are more frequently admitted into evidence than are originals, with a variety of items counting as adequate duplicates: copies of pages of books, treatises, and other papers, photocopies of original text, reprints of photographs, or copies of audio and video recordings.

In the very few cases when an original is not available either as itself or in a duplicate form, secondary evidence can be submitted as proof of content for a writing, photograph, or recording, as allowed under FED. R. EVID. 1004.  FED. R. EVID. 1005-1008 further detail what sorts of materials will stand as valid secondary evidence for proving the content of a missing original (as cited in Lorraine v. Markel, p. 84-85):

FED. R. EVID. 1005:

• Testimony from the author of the original writing
• Testimony from someone who read the author’s writing, including earlier drafts of it, copies, or an outline used to prepare the final original document.

FED. R. EVID. 1006:

• Testimonial summaries of voluminous writings, recordings, or photos, provided the witness has had sufficient time to study and accurately summarize the originals

FED. R. EVID. 1007:

• Testimony to content by a party opponent

FED. R. EVID. 1008 (which is actually a specialized application of Rule 104 (b) related to relevance):

• A form of conditional relevance–the jury decides any factual disputes as to whether there were ever original writings, recordings, or photographs when there are conflicting versions of duplicates, originals, or secondary evidence that are offered into evidence.

Thus, in general, when an original (or its appropriate duplicate) is unavailable for consideration as evidence, a human witness can attest under oath to the content of an original she or he has worked with as a means of proving the contents of a writing.  Here again, we see the important role of human witnesses in establishing the value of a document–electronic or otherwise–as legal evidence.

Original Writing and Electronic Documents

According to FED. R. EVID. 1003:

An “original” of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it.  An “original” of a photograph includes the negative or any print therefrom.  If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an “original” (as cited in Lorraine v. Markel, p. 86–emphasis added).

The “original” status of electronic documents is further specified in FED. R. EVID. 1001 (3), which states:

The “original” of information stored in a computer is the readable display of the information on the computer screen, the hard drive or other source where it is stored, as well as any printout or output that may be read, so long as it accurately reflect the data” (Ibid).

The two rules cited above reflect the court’s recognition of the changing nature of documentation as we shift information media from print formats to electronic presentation.  An advisory committee’s note to Rule 1001 observes that as methods for storing data expand to include electronic media, the court’s understanding of “original writing” has also expanded to recognize that ultimately the important feature of documentation is its usable presentation as words and figures, whether physically printed or not.  Thus, the original understandings of Federal Rules of Evidence for original writing have been expanded to “…include computers, photographic systems, and other modern developments” (Ibid).   By expanding the rules and definitions surrounding original writing to accept the usable presentation of words and figures, this has allowed courts in the U.S. to process new communicative sources that are text-based and admit them as evidence.  For example, in Laughner v. State, a ruling came down that recognized content from internet chat rooms that was copied and pasted into a word processing document as original writing vis-a-vis the Original Writing Rule (Weinstein at section 900.07[1][d][iv]; RICE at 194; Laughner v. State, 769 N.E.2d 1147 (Ind. Ct. App. 2002) as cited in Lorraine v. Markel, pp. 86-87).  In the particular case cited, an undercover officer was able to prosecute an adult soliciting sex from children by posing as a child in a chat room, then copying and pasting the text content of their chats into a word document.  This material was subsequently printed and entered into evidence after the court interpreted the Federal Rules of Evidence to include any textual representation of information as long as it proves the content of the original document–electronic or physical.

Finally, given that electronic documents tend to be rather ephemeral, the rules permitting secondary evidence to stand in lieu of original writing takes on a particularly strong significance for entering electronic materials into evidence.  Because electronically created documents frequently get deleted, purged by email management software, lost with systems crashes, etc., at least one case has “…recognized that the ‘tenuous and ethereal nature of writing posted in internet chat rooms and message boards means that in all likelihood the exceptions [to the original writing rule that permit secondary evidence] would… [apply]'” (Bibday.com, Inc. v. Spry, 2003 WL 723297 (Cal. App. 2004)(unpublished opinion) as cited in Lorraine v. Markel, pp.91).

To summarize then, Federal Rules of Evidence concerning original writing and secondary evidence that can represent original writing have been expanded to allow for electronic documents, photographs and recordings because the rules granted leeway to the courts to recognize that “original writing” is about the presentation of information as words and figures, rather than the actual medium of presentation (i.e., print vs. electronic presentation of words and figures).  Thus, if an electronic document, photograph or recoding meets the requirements of relevance, authenticity, hearsay, and can be shown to be “original writing” that proves the content of itself, the document is an excellent chance of being successfully admitted into evidence.

Rule 403 and Undue Prejudice

The final hurdle that a piece of electronic evidence may have to clear concerns “…the need to balance its probative value against the potential for unfair prejudice, or other harm, under Rule 403 of the Federal Rules of Evidence” (Lorraine v. Markel, pp. 98).  This rule states:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

Essentially, this rule says that a piece of evidence of unquestioned relevance to a case can be excluded from presentation because its value as proof is outweighed by the potential problems it could cause.  For example, a computer animation demonstrating the processes and effects of shaken infant syndrome, while a relevant explanation of how shaking a baby can cause permanent developmental damage, could potentially be excluded from presentation in court because the nature of the material could be emotionally confusing or misleading for the jury.  Unless steps are taken to make the jury explicitly aware that it is a demonstration and not a representation of what might have befallen the child under consideration in the case, the evidence could unduly prejudice the jury against the defendant by making members believe that the depicted material is a representation of the defendant’s actions.  However, if provision is made to clearly represent the animation as an explanation in the abstract rather than a concrete representation of events relevant to the case, then the animation can successfully be admitted into evidence (example derived from State v. Sayles, 662 N.W. 2d 1, 11 (Iowa, 2003) as cited in Lorraine v. Markel, pp. 99).

Rule 403 and Electronic Evidence in Human Rights

Though Rule 403 is rarely applied when determining whether documents can stand as evidence in a given case, it can take on special significance in the realm of  human rights.  As the field of human rights documentation takes increasing advantage of electronic and digital means of capturing and documenting abuses, there is the potential that strongly relevant evidence of abuses could be excluded because other information caught on tape, in a photograph, or in an audio recording could be prejudicial to a jury.  Such evidence will likely need to be bolstered with witness testimony to clearly draw the jury’s attention to the relevant material in a recording because recordings rarely catch only one side or aspect of a conflict.  Furthermore, electronic footage can be easily edited to selectively emphasize events that, while real, may not have taken on such prominence in reality.  The result is a set of images or information that unfairly manipulates emotional responses in a jury, thus short-circuiting attempts at “objective” justice.

Legal Considerations for Electronic Evidence, Part 4: Hearsay

This post is the fourth in a series discussing a legal opinion that focuses on establishing electronic documentation as evidence for legal proceedings within the United States legal system.  The opinion was written in response to a case  in which both parties submitted emails as evidence to support their claims, but the judge found that neither had taken sufficient steps to establish the admissibility of electronic evidence and dismissed both sides’ motions without prejudice so that they could do the necessary footwork and resubmit.  At the same time, the judge took advantage of writing the opinion to pull together a comprehensive review of extant precedent on electronic evidence in order to create a resource for future counsel relying on electronic documents as a source of evidence.  The judge writes concerning five issues that must be addressed when submitting electronic evidence–just as would be done for paper evidence.  The issues are: relevance, authenticity, hearsay, original or duplicate documentation, and unfair prejudice.

The discussions posted here are based on commentary presented in the Memorandum Opinion for the case “Jack R. Lorraine and Beverly Mack, Plaintiffs v. Markel American Insurance Company, Defendants.  Civil Action No. PWG-06-1893,”  heard in the United States District Court for the District of Maryland.  The opinion was written by Paul W. Grimm, Chief United States Magistrate.  For an overview of the case, please see the post “Legal Considerations for Electronic Documentation in the U.S.“

The current post considers questions of hearsay in establishing the validity of electronic documents–above all, email and text messages–as valid evidence.  As with previous issues (relevance and authenticity), we see that precedent established for paper and physical evidence extends to email and other forms of electronic evidence.

–Sarah

Hearsay

Though there is no all-encompassing definition for the  term “hearsay” in US legal practice, the term generally refers to statements made outside of a given judicial proceeding.  Such statements are typically not admissible as evidence because the person communicating the statement is either a) not the person who originally made the statement, or b) is reporting on his or her own previous remembered statement made outside of court. In both cases,  there is no way for the judge or jury to determine the veracity of the statement.  Nevertheless, there are circumstances under which such  reported information can have bearing on a case and not count as hearsay,  therefore, the Federal Rules of Evidence provides the “Hearsay Rule” as an analytic means of determining and defining hearsay.

Hearsay Rule

Though there is no standard definition for hearsay, the Hearsay Rule provides the closest thing to it, stating that hearsay is :

a statement, other than one made by a declarant while testifying at the trial or hearing, afforded in evidence to prove the truth of the matter asserted (see Wikipedia).

As such, the rule’s purpose is:

aimed at prohibiting the use of a person’s assertion, as equivalent to testimony to the fact asserted, unless the assertor is brought to testify in court where he may be placed under oath and cross-examined (see Wikipedia).

Basically then, hearsay consists of reported statements that can’t be verified because it is nothing more than an assertion.  In order to shift assertion to fact, reliable evidence and testimony needs to be brought to bear on the assertion.  The only way that the reliability of such information can be established is for the person who made the original statement (in speech or writing) to testify under oath in court as to the nature of the statement, the context in which it was made, and the meaning of the statement to him- or herself.  Otherwise the statement is mere assertion with no provable truth-value and cannot stand as evidence in court.

Hearsay and Electronic Evidence

The term “hearsay” typically elicits the idea of speech in lay thought, but the Hearsay Rule specifically refers to “statements,” which can be either written or spoken.  This focus on “statement” applies to electronic evidence in two ways: 1) emails, text messages, and computer generated reports are text based; 2) digital video and audio recordings capture spoken utterance or other nonverbal conduct “expressly intended to be an assertion” (Lorraine v. Markel, Pp. 58) that can be considered statements.  Thus, just as with paper documents, in order to determine whether the content of electronic documents is hearsay or fact, the author must testify under oath and submit to cross-examination in order to determine whether the content is fact and can stand as evidence.  In this, we see that as with any other proof of admissibility for electronic evidence, the burden of proof still stands with witnesses who can make an accounting for the content of the document in court (see Legal Considerations for Electronic Evidence, Part 2:  Relevance & Authenticity for a detailed discussion of the role of  testimony in establishing electronic documents as evidence).

This said, there are certain documents–electronic or traditional–that automatically do not count as hearsay and therefore stand as evidence in court.  These include:

• computer generated reports
• business records
• public records (e.g., birth, death, or marriage certificates)
• excited utterances–“a statement relateing to a startling event or condition made while the declarant ws under the stress or excitement caused by the event or condition”  (FED. R. EVID. 803 (2) as cited in Lorraine v. Markel, Pp. 70).
• family records
• statements of  “then existing state of mind or condition”–“A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, but not including a statement of memory or belief to prove the fact remembered or believed…” (FED. R. EVID. 803(3) as cited in Lorraine v. Markel, Pp. 71.  Note that if a witness says “I believe I was frightened” rather than “I was frightened,” the statement becomes assertion and counts as hearsay, thus it cannot serve as evidence in court.

In all of the exceptions to the Hearsay Rule listed above, the content is considered to be factual and there is no need to have a witness testify and be cross-examined in order to determine its merit as evidence.

In Sum

To summarize then, electronic documents are treated under the Federal Rules of Evidence as traditional print documents.  They must therefore also stand up to the same tests as paper documentation when it comes to determining whether the content is hearsay or defensible fact.  If a statement in an electronic document does not meet one of the exceptions listed above, and a witness cannot provide testimony that the content is more than mere assertion, then the document contains hearsay and cannot be admitted as evidence for legal proceedings.

Legal Considerations for Electronic Evidence, Part 3: Applying the Rules of Authenticity

This post is the third in a series discussing a legal opinion that focuses on means for establishing electronic documentation as evidence for legal proceedings in the United States legal system.  The opinion was written in response to a case  in which both parties submitted emails as evidence to support their claims, but the judge found that neither had taken sufficient steps to establish the admissibility of electronic evidence and dismissed both sides’ motions without prejudice so that they could do the necessary foot work and resubmit.  At the same time, the judge took advantage of writing the opinion to pull together a comprehensive review of extant precedent on the submission of electronic evidence in order to create a resource for future counsel relying on electronic documents as a source of evidence.  The judge writes concerning five issues that must all be addressed when submitting electronic evidence–just as would be done for paper evidence.  Those issues are: relevance, authenticity, hearsay, original or duplicate documentation, and unfair prejudice.

The discussions posted here are based on commentary presented in the Memorandum Opinion for the case “Jack R. Lorraine and Beverly Mack, Plaintiffs v. Markel American Insurance Company, Defendants.  Civil Action No. PWG-06-1893,”  heard in the United States District Court for the District of Maryland.  The opinion was written by Paul W. Grimm, Chief United States Magistrate.  For an overview of the case, please see the post “Legal Considerations for Electronic Documentation in the U.S.“

The last post dealt with relevance and gave an overview of the Federal Rules of Evidence that apply to establishing authenticity.  This post will illustrate how those rules apply specifically to four sorts of electronic evidence: E-mail, Website Postings, Messages & Chat Room Content, and Digital Photographs.  A fifth form, Computer Stored Records and Data, while straightforward, is more involved and will be the subject of the next post.

–Sarah

Authenticity: Review

The following summarizes  from the previous post, “Legal Considerations for Electronic Evidence, Part 2: Relevance and Authenticity.”  Read that post for an detailed outline of the Federal Rules of Evidence that apply to establishing the authenticity and admissibility of electronic documents in US courts.

Authenticity entails a process for establishing that a document is indeed what it is represented to be. As stated in Lorraine v. Markel,  the  party presenting electronic documentation as evidence  has to provide sufficient support such that, “[t]he Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so” (United States v. Safavian as cited in Lorraine v. Markel, p. 17).  In other words, at the minimum standard is that the proponent establish the overwhelming likelihood that a document is what it is supposed to be–s/he is not required to establish its authenticity beyond all shadow of doubt.

In order to accomplish this, counsel needs to draw from  several Federal Rules of Evidence and issues of precedent or procedure in order to establish authenticity–specifically, Rule 901(b) sub-rules 1, 3, 4, 7 and 9, Rule 902, and Rule 201 (see the previous post for discussion of these rules).  This post will deal with how these rules get applied concretely to the following forms of electronic evidence:

1. E-mail
2. Webpages and website postings (e.g. comments on blogs or bulletin boards)
3. text messages and chat room content
4. Digital photographs (and by extension, video)

Authenticating E-mail:

According to Judge Grimm, the principle issue relating the authentication of e-mail is confirming authorship.  The concern here is forgery–essentially, logging into someone else’s e-mail account and writing in that person’s name would be the same as writing a letter on company letterhead and forging the president’s signature. Judge Grimm draws from a variety of cases illustrating that the main concerns for both traditional and electronic evidence are analogous and thus establish precedent for extending current Federal Rules of Evidence (FED. R. EVID.) 901 (b) (1 & 4) and 902 (7 & 11) in order to prove the admissibility of e-mail as a form of evidence.

FED. R. EVID. 901 (b) provides a number of ways to authenticate a document through witness testimony, distinctive characteristics of the document itself (e.g. content that clearly identifies or relates to the legitimate author), and by verifying the process of production for the document–namely that the computer and e-mail address used belongs to the author of the e-mail and that the proper e-mail program generated the document in question.   FED. R. EVID. 902, on the other hand, allows for a document to authenticate itself through characteristics of the document itself in a process called “self-authentication”.  That is to say, the document contains identifying information (e.g, official seals, the signature of a notary public, official letterhead, etc.) that verifies its document’s origin, though a witness must be called to attest to the authenticity of these sorts of characteristics. Thus:

The most frequent ways to authenticate e-mail evidence are 901 (b)(1) (person with personal knowledge), 901 (b)(3) (expert testimony or comparison with authnticated exemplar), 901 (b)(4) (distinctive charcteristics, including circumstantial evidence), 902 (7) (trade inscriptions), and 902 (11) (certified copies of business record (Lorraine v. Markel, pp 40).

Note that none of the standards for evidence under rules 901 (b) an 902 require any form of metadata or standard presentation of information.  The usefulness and validity of the material as evidence is determined by authoritative witness who can attest to content and to processes of production, or through characteristics of a document that are uniquely related to the business or agency that produces it.  That said, this latter “self-authentication”  information could very well be standard information such as date stamps, ID codes, and official seals that serve as metadata.  However, in looking closely the rule itself, the court frequently still requires an expert witness to confirm the authenticity of the self-same “self-authenticating” characteristics.  In sum, even in cases when a document contains self-authenticating information, a witness is still needed to verify that information.

Authenticating Internet Website Postings:

When it comes to authenticating content of a website, the primary concern that Judge Grimm cites is that, often, a third party other than the webpage author is responsible for the content that is posted.  This situation requires establishing that the website owner is nevertheless responsible for the content that appears on its pages.  Thus:

[i]n applying [the authentication standard] to website evidence, there are three questions that must be answered explicitly or implicitly.  (1) What was actually on the website? (2) Does the exhibit or testimony accurately reflect it? (3) If so, is it attributable to the owner of the site? (Joseph at 21, also SALTZBURG at §901.02[12], as cited in Lorraine v. Markel, pp 42).

Other factors that the court will consider in accepting website material as evidence include:

• the length of time data were posted on the website
• that others report seeing the material on the site
• that the material is available on the website for the court to verify
• that the data are of the sort normally posted to the website
• whether or not the site owner has published the same data elsewhere
• whether or not others have published the same data on other sites and attributed the site in question as the source (Joseph at 22, as cited in Lorraine v. Markel, pp 42).

These are questions that counsel needs to consider when determining a method for authentication of website material.   According to Judge Grimm, the rules that most likely to apply to establishing the authenticity of webpage data are: 901(b)(1), which calls for a witness with personal knowledge of the webpage; 9o1(b)(3), which calls for expert testimony as to workings of the website; 901(b)(4), which allows distinctive characteristics of the website and content to authenticate the material; 901(b)(7), which applies to public records–if the material comes from a government webpage, then it is public record and thus authentic; 901(b)(9) evidence that the systems and processes responsible for publishing web content produce a reliable result, and 902(5), which applies to official publications–if the material is recognized as web material from a valid source, it’s authentic.

Authenticating Messages & Chat Room Content:

The issues delineated above for authenticating websites also apply to instant messaging and chat room content: “…the fact that chat room messages are posted by third parties, often using ‘screen names’ means that it cannot be assumed that the content found in chat rooms was posted with the knowledge or authority of the website host” (SALTZBURG at § 901.02[12] as cited in Lorraine v. Markel, pp 43).    Thus the foundational requirements for establishing the authenticity of chats are as follows (Ibid):

• evidence that the individual in question used a particular screen name when chatting
• when arranging a meeting via chat using the screen name in question, the individual in question showed up for the meeting
• the individual in question identifies him- or herself as the person using the screen name in question
• evidence from the hard drive of the person’s computer showing use of the screen name

Drawing from a variety of cases, Grimm concludes that he “…the rules most likely to be used to authenticate chat room and text messages, alone or in combination, appear to be 901(b)(1) (witness with personal knowledge) and 901(b)(4) (circumstantial evidence of distinctive characteristics)” (In Re F.P. A Minor,878 A. 2d at 93-94 as cited in Lorraine v. Markel, p 43).  Once again, authentication here depends on personal knowledge presented by witnesses and the content of the documents (or text transcripts) themselves rather than any standard of metadata or means of storage and distribution.  The implication for preservation of this sort of material, then, is that care needs to be taken to determine that important contextual information about programs, content, and individuals involved needs to be saved alongside of the text and chat room content.

Authenticating Digital Photographs:

The single largest issue facing the authentication of digital photos is a fear that they can be more easily manipulated than traditional photos. According to Judge Grimm, “Digital photographs present unique authentication problems because they are a form of electronically produced evidence that may be manipulated and altered.  Indeed, unlike photographs made from film, digital photographs may be ‘enhanced'” (Lorraine v. Markel, pp 52-53.  Specifically items can be removed or added to images, or constituents of the photograph can be highlighted or enhanced–all quite easily through digital photographic editing software.  However, the fear of alteration is not unique to digital photography, even if it may be somewhat easier.  Therefore, the same procedures apply to authenticating both types of photograph.  Specifically, through witnesses who can either attest to the scene depicted, or explain processes of conversion and alteration of photographs through editing, whether analog or digital (Lorraine v. Markel, pp 53-54).  In the case of digital editing, Grimm cites a commentator who suggests an eight-step foundation process for establishing the authenticity of the digitized version of a film photo via a witness who (Lorraine v. Markel, pp 55):

1. is an expert in digital photography
2. can testify to the process for creating a digital photograph and explain how visual information is presented (e.g.density of pixles) as well has how a computer can manipulate this information
3. testifies to the validity of the process
4. can state that research into enhancement technology is adequate to support claims about the image
5. can testify that the software used to manipulate the photo was developed from sound research
6. has received a film photograph
7. digitized the film photograph using the proper process and then enhanced the digital copy using the correct procedure
8. can identify the trial exhibit as the product of the conversion and/or enhancement work s/he conducted

In Sum…

In sum, in all of the cases of electronic evidence discussed above, there is ample precedent for treating it as we would paper documentation, though the electronic nature of the documentation may require further steps to be taken to establish its authenticity.  Fortunately, the Federal Rules of Evidence that already exist can easily be extended to address the special issues related to electronic documentation.  However, the interesting point from an archiving and preservation perspective is that, though metadata can be very important in establishing the authenticity of a document, metadata alone are not enough.  The court still needs witnesses to attest to documentation types, practices, contents, and authorship.  Understanding this can help us think about the sorts of minimal standard data we might want to collect when cataloging and archiving electronic human rights material so that it can stand up to the test of the courts and serve as evidence in future cases.

Legal Considerations for Electronic Evidence, Part 2: Relevance and Authenticity

This post is the second in a series discussing a legal opinion that focuses on means for establishing electronic documentation as evidence for legal proceedings in the United States legal system.  The opinion was written in response to an insurance arbitration case concerning coverage for lightning damage to the plaintiffs’ yacht.  Both parties to the case (the yacht owners and the insurance company) submitted emails as evidence to support their claims, but the judge found that neither party had taken sufficient steps to establish the admissibility of electronic evidence and dismissed both sides’ motions without prejudice so that they could do the necessary foot work and resubmit.  At the same time, the judge took advantage of writing the opinion to pull together a comprehensive review of extant precedent on the submission of electronic evidence in order to create a resource for future counsel relying on electronic documents as a source of evidence.  The judge writes concerning five issues that must all be addressed when submitting electronic evidence–just as would be done for paper evidence.  Those issues are: relevance, authenticity, hearsay, original or duplicate documentation, and unfair prejudice. This post will deal with relevance and then begin to deal with authenticity.  However, Authenticity is a very complex issue, so there will be at least two posts dealing with it.

The discussions posted here are based on commentary presented in the Memorandum Opinion for the case “Jack R. Lorraine and Beverly Mack, Plaintiffs v. Markel American Insurance Company, Defendants.  Civil Action No. PWG-06-1893,”  heard in the United States District Court for the District of Maryland.  The opinion was written by Paul W. Grimm, Chief United States Magistrate.  For an overview of the case, please see the post “Legal Considerations for Electronic Documentation in the U.S.“
–Sarah

Issue 1: Relevance

Relevance refers to whether or not a piece of evidence has any direct bearing on the case at hand in terms of contributing to the ability to prove or disprove facts of the case.  According to Judge Grimm, relevance is the first thing to be established for any potential piece of evidence, including an electronic document.  Following Federal Rule for Evidence (FED. R. EVID) 401:

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probably than it would be without evidence.  The question of relevance is thus different from whether evidence is sufficient to prove a point (Lorraine v. Markel, p. 13).

Given that this standard must be met for establishing the relevance of  any sort of evidence, regardless of origin or format, it isn’t at all difficult to figure out how this rule applies to electronic evidence, or “electronically stored information” (ESI).  As indicated in the quoted material above, at the bare minimum, counsel has to demonstrate that the documentation they wish to submit has some bearing on the facts of the case–this is largely established through content and origin of the document.  Once relevance has been established the next step is to establish the authenticity of the documentation in question.

Issue 2: Authenticity: The Lay of the Land

Authenticity simply means that a document is indeed what it is represented to be. In fact, this aspect of establishing a document as evidence is closely related to relevance–if the document is not what it is purported to be, then it is not relevant to the case.  At the  very least, the party putting forth the document (the “proponent”) has to provide sufficient evidence such that, “[t]he Court need not find that the evidence is necessarily what the proponent claims, but only that there is sufficient evidence that the jury ultimately might do so” (United States v. Safavian as cited in Lorraine v. Markel, p. 17).  In other words, at the very least, the proponent needs to establish the overwhelming likelihood that a document is what it is supposed to be, s/he is not required to establish its authenticity beyond all shadows of doubt.

Establishing authenticity seems straight forward on the surface of things, but the legal rules and protocols surrounding it are involved and complex.  In fact, out of the 101 page opinion that Judge Grimm wrote to cover the five key issues related to establishing the admissibility of electronic documentation into evidence, the section on authenticity accounts for 40 pages  (Lorraine v. Markel, Pp. 16-56).  There are several Federal Rules of Evidence and issues of precedent or procedure that apply to establishing authenticity, but this and subsequent posts will only focus on those that relate most directly to questions of interest for archiving and preservation, namely challenges related to establishing authenticity and the role of metadata in establishing the same.

Key types of evidence to be authenticated

The question of establishing authenticity applies to all forms of electronically produced document or communication, but from the perspective of human rights work, I will draw out those forms that are most directly relevant to legal action and archiving vis-a-vis human rights electronic documentation.  Future posts will work through the issues associated with authenticating these forms in detail.  The forms in question are:

1. Email
2. Webpages and website postings (e.g. comments on blogs or bulletin boards)
3. text messages and chat room content
4. Computer stored records and data
5. Digital photographs (and by extension, video)

Clearly, there are other forms of digital and electronic documentation or communication that exist–e.g. audio recordings, mashups, Twitter tweets, Facebook posts–but those listed are the types focused on in Lorraine v. Markel, largely because in 2007 (when the opinion was written), Web 2.0 had not taken off to the extent that it has now.  However, as we will see in working through the issues and rules related to the five document types listed, the considerations will be the same for new social media text sources and it is likely that Federal Rules of Evidence are being extended to accommodate them as sources of evidence even as we speak.

Key procedures for establishing authenticity

As Judge Grimm notes in his opinion, the world of technology is quickly changing, making it very difficult for there to be any standard of evidence that applies across all instances of electronic documentation.  Metadata associated with computer programs, media platforms, and the like are an important source for authenticating a document, but due to the changing nature of the technology world, the court cannot expect metadata standards, nor can judges or juries–as technology lay folk–be expected to be up to speed on the latest iterations of metadata practices.  Thus it is incumbent upon counsel (lawyers for the plaintiff and defendant) to use multiple means of establishing the relevance and authenticity of any given piece of electronic information.

Fortunately, the current Federal Rules of Evidence extend nicely to address issues related to electronic documentation, thus allowing counsel to extend rules and judges to find those extensions to be valid.  As a result, a body of precedent already exists demonstrating that if a piece of electronic evidence stands up to the rigors of discovery and foundation, then it serves as evidence just as paper documentation, phone calls, or even reported conversations do.  And since there is no standard of metadata or presentation for any of these more traditional forms of evidence, the court expects no such standard for electronic evidence, either.  Instead, counsel are expected to use a combination the following means of establishing the authenticity of electronic evidence (see Lorraine v. Markel p. 21–listing only those items that apply specifically to electronic evidence.  See the full text in the opinion for a complete list of rules for evidence under FED. R. EVID. 901(b)):

Rule 901

(b) Illustrations

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge.  Testimony that a matter is waht it is claimed to be.

(3) Comparison by trier [jury] or expert witness.  Comparison by the trier of fact or by expert witnesses with specimens that have been authenticated.

(4) Distinctive characteristics and the like.  Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

(7) Public records or reports.  Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

(9) Process or system.  Evidence describing a process or system used to produce a result showing that the process or system produces an accurate result.

In addition to FED. R. EVID. 901, two other Federal Rules come into play–902 and 201.

Rule 902 allows for authentication of evidence through extrinsic evidence in a process called “self-authentication.”  Essentially, the nature of the document itself, the way it has been identified and recorded, and the process by which it was recorded are sufficient to ensure that the document is what it purports to be.    Such self-authenticating indicators include (Lorraine v Markel p. 31-32):

1. public documents (foreign or domestic) carrying a seal of certification
2. public documentation (foreign or domestic) without a seal, but vouched for under seal by an authority able to identify the document
3. Foreign documents executed and/or attested by authorized individual
4. certified copies of public records (foreign or domestic)
5. official publications
6. news papers or periodicals
7. trade inscriptions–signs, tags, or labels affixed by home offices
8. documents acknowledged by a notary public
9. commercial paper related to documents, e.g., signatures
10. documents declared by Act of Congress to be authentic
11. certified domestic records of regularly conducted activity accompanied by declaration of such written and sealed by authority
12. certified foreign records of regularly conducted activity accompanied by declaration of such written and sealed by authority

Rule 201 allows for the authentication of evidence through judicial notice of adjudicative facts that are either generally known within the jurisdiction of the court or for which accuracy can be determined by sources that “cannot reasonably be questioned” (Lorraine v. Markel, p. 38 citing FED. R. EVID. 201(b); WEINSTEIN 201.12[1]).  Essentially, in this sort of authentication, if the judge recognizes the ubiquity of a form or practice of documentation as common in his or her jurisdiction, then the documentation is acceptable as evidence.

The three rules and their associated sub-rules above were all originally written in a world of paper documentation, however, as we will see as future posts work through examples of their application, they can be easily extended to electronic documentation, allowing for their authentication even in the absence of good metadata or solid knowledge of the opperations of programs and platforms.  As Judge Grimm summarizes the situation:

The above discussion underscores the need for counsel to be creative in identifying methods of authenticating electronic evidence when the facts support a conclusion that the evidence is reliable, accurate, and authentic, regardless of whether there is a particular example in Rules 901 and 902 that fit.

In short, counsel need to recognize that no single approach to authentication will serve all cases and classes of electronic evidence because of the wide diversity of documentary types that exist.  Understanding how rules of evidence transform electronic documents into admissible evidence has important implications for thinking about producing, archiving, and preserving electronic documentation of human rights issues.  In a context that increasingly calls for standards and best practices, we recognize that courts of law have no expectation of standardized formats, metadata, or archiving practices.  Such standards serve as one part of a larger set of supporting evidence for establishing a document as evidence.  The standards do not stand alone.

Legal Considerations for Electronic Evidnece in the U.S.

This post will be the first in a series  that will cover some of the legal considerations surrounding the admissibility of electronic documentation as legal evidence in the United States.  Though the legal considerations aren’t the same internationally, I imagine many of the same issues have to be confronted in the international courts as human rights cases enter the judicial process and an increasing amount of evidence is created electronically.

This first post in the series provides and overview of a judicial opinion from the Circuit Court of Maryland that lays out the issues of admissiblity for electronic evidence and summarizes the main points I see as important for thinking about from the perspective of archiving and preservation.  Subsequent posts will focus on specific issues in detail in order to present issues that might be worth considering as we think about archiving and preserving electronic evidence of human rights issues, cases, and abuses.  Please feel free to comment on and discuss these issues here in the blog as I get them posted!

–Sarah

One of the questions in the Human Rights Electronic Evidence Study concerns how electronic human rights documentation can serve legal needs as cases move into local, national, or even international courts.  Judicial processes are necessary for bringing closure to victims, seeking justice from perpetrators, establishing legal protections for basic human rights, creating democracy, and establishing a means of making reparations for losses and suffering.

A  judicial opinion that came out of the District Court of Maryland in May  of 2007 takes us a good step toward understanding how electronic documentation can be admitted as evidence in support of legal cases.  Written by Paul W. Grimm, Chief United State Magistrate, the opinion addresses a fairly straightforward insurance arbitration case that would not normally require an elaborated opinion, but problems arose concerning the admissibility of email as evidence to support both the plaintiff’s and the defendant’s claims.  Judge Grimm therefore took advantage of his decision in the case to pull together a  body of extant case precedent regarding the admissibility of electronic evidence to serve as a resource for future cases.  In doing so, Judge Grimm recognizes that–as more and more documentation is created, stored and shared electronically–the court needs to have a set of expectations in place for establishing the validity of  electronic documentation, or “electronically stored information” (ESI).  Though this case does not deal with human rights issues, the processes and protocols that Judge Grimm pulls together can serve human rights cases  as parties seek to admit electronic evidence to support their cases.

The opinion is quite long at 101 pages (thus the need to address it in several posts) and identifies five key issues that counsel must address when submitting ESI as evidence in legal proceedings.  These issues apply to all forms of documentation that could potentially serve as evidence, but most importantly for our purposes, the opinion explains how standing Federal Rules of Evidence can be interpreted to apply to electronic evidence.  The basic argument is that the courts are already well-equipped to handle electronic evidence–there is no need for new rules and procedures.    The five issues focus on how counsel must establishing the following when submitting documentary evidence:

1. the relevance of ESI
2. its authenticity
3. that the content of the ESI is not hearsay
4. that the document is either an original or and acceptable duplicate
5. that the document does not introduce unfair prejudice into the case

Jack R. Lorraine and Beverly Mack v. Markel American Insurance Company, Civil Action No.: PWG-06-1893, Memorandum Opinion, District Court of Maryland

The plaintiff and defendant in this case have asked the court to decide on the enforcement of an arbitration decision vis-a-vis insurance coverage of lightning damage to a yacht.  The defendant, Markel American Insurance Company, while accepting the arbitration in favor of the plaintiffs (Lorraine and Mack, the owners of the yacht in question), argues that the arbitrator overstepped his authority regarding awarding monetary damages.  The case is thus about a matter of arbitration procedure, but the judge has dismissed both parties’ motions without prejudice because they both failed to properly establish the authenticity of email documentation as evidence to support their cases.  The judge therefore has taken advantage of the case as an opportunity to pull together a comprehensive opinion concerning the procedures necessary for submitting such evidence and having it stand up in a court of law.  As stated in the opinion:

Because neither party to this dispute complied with the requirements of Rule 56 that they support their motions with admissible evidence, I dismissed both motions without prejudice to allow resubmission with proper evidentiary support.  (Paper No. 26).  I further observed that the unauthenticated e-mails are a form of computer generated evidence that pose evidentiary issues that are highlighted by their electronic medium.   Given the pervasiveness today of electronically prepared and stored records, as opposed to the manually prepared records of the past, counsel must be prepared to recognize and appropriately deal with the evidentiary issues associated with the admissibility of electronically generated and stored evidence.  Although cases abound regarding the discoverability of electronic records, research has failed to locate a comprehensive analysis of the many interrelated evidentiary issues associated with electronic evidence.  Because there is a need for guidance to the bar regarding this subject, this opinion undertakes a broader and more detailed analysis of these issues than would be required simply to resolve the specific issues presented in this case.  It is my hope that it will provide a helpful starting place for understanding the challenges associated with the admissibility of electronic evidence.

The main issue at question in this case was that the parties failed to establish the authenticity of their electronic evidence (a point to be elaborated later in this series), but from an archiving point of view, interesting issues regarding metadata were raised in the process of determining how to establish the authenticity of an electronic document.  As I read the opinion, the points I gleaned concerning metadata and electronic documentation were as follows:

1)       Metadata provided by electronic processing are useful and when available should be taken as proof of authentication (following the Sedona Guidelines: Best Practices in Managing Electronic Information–a .pdf is also available for download here).

2)       However, metadata constantly change as electronic platforms change, and judges are no more qualified to determine authenticity in the face of ever-changing technology than are other technology lay people, so admissibility must more often be determined by affidavit, witness statements to the veracity of the document, or any number of non-metadata related processes for authentication (these processes will be elaborated in subsequent postings in this series).

3)       The majority of admissibility appears to be determined through the processes listed in number 2 above, using as precedent a number of Federal Rules of Evidence (104 a&b, 901, 908, 403, 405) that were designed for paper evidence and extended to electronic evidence.

The general sense, then, is that there is actually no expectation by U.S. courts for standards of metadata because said metadata are constantly shifting and no one can keep up, so the goal is to treat electronic evidence as we would paper evidence in determining authenticity and admissibility.  This fact that the courts have low expectations for metadata in electronic evidence potentially raises some interesting issues and discussions in human rights documentation and archiving–issues that would be good to engage here in follow up discussions related to the posts.

The next post will focus on establishing the relevance and authenticity of electronic documents.

Preliminary Impressions of Documentation Practices in Mexico

As many of you know, three weeks ago I was in Mexico visiting a number of human rights groups so that I could document their documentation practices.  I will be writing up formal reports for each of the groups I visited, but I thought I’d post some of the highlights of the trip here for you to enjoy.

Que disfruten! –Sarah

Goal: D0cumenting Documentation in Mexico

On February 14, 2010 I traveled to Mexico to spend five days in the town of San Cristóbal de las Casas in the state of Chiapas, followed by three days in Mexico City.  The goal of the trip was to visit a variety of human rights organizations in order to learn more about the the work they do and the resources they dedicate not only to their activism, but also to documentation activities.  Above all else, I went to learn about how they document the work they do and the goals they have for that documentation.  The trip was a tremendous success, most especially thanks to the invaluable help and organizing efforts of Paco Vazquez, who served as my guide and consultant in Chiapas.  Paco is the director of Promedios (a video activism organization centered in San Cris) and arranged for me to visit groups whose doors would have otherwise been closed to me.  He carefully organized these visits so that I could follow the flow of information through various levels of documentation practice in Chiapas.  The interesting pattern there is that information organically flows from small grassroots community groups (who engage in intense activism but have few documenting resources) to larger organizations of legal and documentation professionals who can process community information and mobilize it to serve a variety of purposes locally, nationally and internationally.  Paco explicitly organized things so that I could see this pattern, but serendipitously, the groups that I later visited in Mexico City on my own happened to be those that receive the documentation from the documentation groups in Chiapas.   I was thus able to witness an important and central flow of human rights information in Mexico that has emerged in response to the challenges that individuals and groups face in Chiapas.  This will be the topic of a formal report that we are developing here at CRL, and I will announce that report here when it’s completed.

So where did I go?

The itinerary of visits to organizations I visited was as follows:

Monday February 15, 2010:

• La Red de Defesnsores Comunitarios de los Derechos Humanos,  San Cristóbal de Las Casas.  This organization seeks to support local groups in their activism and collects minimal documentation.  The largest project they have been involved in was supporting legal proceedings for abuses in Morelia in the late 1990s and they maintain a copy of the legal documentation involved in that case.
• Promedios, San Cristóbal de Las Casas.  Promedios conducts and supports video activism throughout Chiapas and also in Guerrero in an effort to allow local groups to use video to voice their own concerns and represent their lives as they wish them to be represented.  They have collected thousands of hours of video footage in the 12 years since their inception, all of which is stored locally in their offices.  Paco Vazquez and a volunteer are currently in the process of cataloging these materials and researching affordable and effective means of preserving them.

Tuesday February 16, 2010:

• Fray Pedro Lorenzo de la Nada, Ocosingo (a community seat for smaller indigenous municipalities in the mountains about two hours to the northeast of San Cristóbal de Las Casas).  Fray Pedro is group that supports local indigenous communities in managing and organizing activism efforts.  They collect paper documentation of their case work and maintain digital archives of the reports they generate.
• Servicios Asesoría para la Paz (SERAPAZ), Ocosingo.  The mission of SERAPAZ is to help mitigate conflict and establish a stable social peace between opposing parties or groups, above all between Indigenous Maya communities and mainstream governmental structures.  To this end, organizations approach them for training and empowerment so that they can learn to peacefully and effectively stand up for and receive their rights.

Wednesday February 17, 2010:

• Las Abejas, Acteal (a Tzotzil Maya community about and hour and a half to the north of San Cristóbal de Las Casas in the mountain cloud forests).  Las Abejas (meaning “the bees”) is a pacifistic Christian group located in the village of Acteal.  The group originally formed to engage in peaceful resistance of oppressive government policies, but after the Massacre of Acteal (which occurred in the village 12 years ago at the hands of fellow Tzotzil who were pro-state paramilitary members) Las Abejas has dedicated itself to justice and memory activities.  Though there is little in the way of infrastructure within the community to support documentation efforts, Las Abejas works with other groups to engage in video activism and to record their testimonies and provide evidence for legal proceedings.  In these latter activities, the community works with Fray Bartolomé de Las Casas (see below), a group of human rights lawyers working out of San Cristóbal de Las Casas.

Thursday Feberuary 18, 2010

• Centro de Derechos de la Mujer de Chiapas (CDMC), San Cristóbal de Las Casas.  CDMC is a confederation of 21 communities throughout Chiapas, all focused on improving women’s understanding of and engagement with their constitutionally guaranteed rights.  Though the focus is explicitly on gender issues, these are closely tied in with a whole range of human rights abuses that need to be addressed in the Chiapas region.  Therefore, the support and empowerment services that CDMC provides helps the women that participate in their network to help their communities realize their rights.  From the beginning, the organization’s founder has stressed the need to document all of their activities for memory and for legal purposes.

Friday February 19, 2010

• Centro de Derechos Humanos, Fray Bartolomé de Las Casas, or Frayba, San Cristóbal de Las Casas.  Frayba is a group of human rights lawyers and technology professionals that specializes in legal representation and providing legal resources to local communities.  The center houses a large archive of legal documents, as well as case evidence to support the cases they present in national and international courts.  They also have a large collection of reference materials that hey have amassed as a result of researching rights issues and rights law.  They are in the process of designing a dedicated and controlled archiving space for preserving these materials and making them available for research.
• Centro de Investigaciones Económicas y Políticas de Acción Comunitaria (CIEPAC), San Cristóbal de Las Casas.  CIEPAC is a research organization that focuses on economic and political analysis at the local level.  They work to provide support and research training to local human rights groups who seek out their assistance.  The data they collect are used to create regional reports of conditions specific to particular communities, as well as to create more broadly comparative analyses.  CIEPAC strives to maintain a database of the data and reports the group creates and is in the process of organizing a large collection of reference materials that they have collected since their inception in 1998.

Monday February 22, 2010

• Red Nacional de Organismos Civiles de Derechos Humanos: Todos los Derechos Para Todas y Todos (RedTdT), Mexico City.  As an organization, RedTdT began its work in the defense of gender rights, but has transformed into a group dedicated to providing a system of documentation to a network of smaller human rights groups of all stripes from all over Mexico.  There are currently 68 organizations in their network and all are in the process of adopting a documentation database program that RedTdT has developed for standardizing and sharing documentation across Mexico.  The program is based on HURIDOCS’s WinEvsys documentation program and human rights thesauri.  The program will allow human rights organizations to catalog the cases they work with, as well as have access to case content so that organizations can run analyses of patterns and trends in their communities.  The database program also allows the groups within the network the opportunity to backup their data in a central database where it can also be used to run regional and national analyses of human rights trends.   Frayba (see above) is a principal participant in this program.
• Canalseisdejulio (Canal 6), Mexico City.  Canal 6 is an independent, non-profit documentary film studio in Mexico City that creates films designed to uncover human rights and political abuses in Mexico.  In their more than 20 years of operation, they have created over 50 documentaries and collected thousands of hours of raw video footage, as well as associated notebooks and contextual materials.  These materials are now catalogued and preserved at the Universidad Nacional Autónoma de México (UNAM), where scholars and legal professionals can access them.

Some Preliminary Impressions

Upon first impression, the most striking characteristic of the documentation activities I saw in Chiapas is the organic way in which the organizations work together to bridge an significant cultural divide in what counts as evidence when seeking justice or maintaining historical memory.  All of the groups I visited in Chiapas are explicitly involved in indigenous rights for the many Maya communities that inhabit the region.  These groups have traditionally been abused and repressed since the coming of the Spanish in the 15th Century, but they are making significant strides toward gaining autonomy, recognition, and the freedom to exercise their human rights.  In doing so, they have had to learn how to convert their forms of truth and evidence–which are largely oral–into the sorts of formal documentation artifacts that are required by mainstream Western legal processes.  Thus, much of the work in Chiapas focuses on transforming oral tradition–which is collaboratively created rather than individually recounted–into individualistic paper and video documentation that will stand up as evidence in legal and scholarly contexts.  Bridging this divide has resulted in a variety of organically emerging relationships between indigenous populations and mainstream professionals who have ties to the indigenous communities either through family or affinity.  Through these cooperative arrangements, the Maya maintain their oral histories while documentation and legal professionals record them and transform them into the legal artifacts that are necessary for gaining and maintaining legal rights.

This process is most strongly evident in the relationship between Las Abejas (and the community of Acteal) and Frayba, which has served as their legal representation for the last 12 years.  My visit to Acteal was the most deeply “impresionante” or impactful visit of my trip.   12 years ago this Tzotzil village experienced a massacre in which 45 people were killed as they attended church services.  Their attackers were neighboring Tzotzil–friends and family members that they new–who belonged to a pro-state paramilitary organization that sought to eliminate all resistance to state policies, even if that resistance was peaceful.  As Paco and I sat in the Acteal communal kitchen (a single room structure with a dirt floor and an open cooking fire at one end) we spoke to three community leaders who are also survivors of the massacre.  They explained to us how they have worked with Frayba to transform their experiences and memories of events into testimony and evidence that the courts will recognize and consider.  The process has been long and will continue for some time to come because of human and legal rights issues for both plaintiffs and defendants.  But each step and each adaptation that the Maya on both sides engage in represents an adaptation that allows their voices to be heard and recorded and serves as a potential model for bridging this sort of cultural divide between oral traditions and Western legal practice.

Ushahidi: Using Social Media to Track Crises

Image courtesy of http://www.ushahidi.org

In the field of crisis mapping (see iRevolution for an ongoing discussion of this field), the Ushahidi platform is gaining a strong foothold as an affordable and easy-to-use technology for capturing “distributed” information (that is to say, from multiple and scattered sources) about crisis events and providing a visual representation of the process of the crisis.  Ushahidi accomplishes this by posting incoming information on an on-line interactive map in near real-time as events unfold.  The platform allows users to submit digitally created documentation of events they witness primarily via cell phones (e.g., text messages, photos, or video recordings), but also from computers–basically by any means that allows access to the web and therefore access to a dedicated instance of the Ushahidi platform.  As stated on the Ushahidi webpage:

The Ushahidi Engine is a platform that allows anyone to gather distributed data via SMS, email or web and visualize it on a map or timeline. Our goal is to create the simplest way of aggregating information from the public for use in crisis response.

This tool was originally created to help raise awareness of and mobilize intervention in the post-election violence that erupted in Kenya in January, 2008 but has been further developed so that a range of grassroots efforts can adopt the tool to map events of concern to them.  The “Our Work” page at Ushahidi provides a list of the various organizations that have built the platform into their activism efforts.

Background: Violence in Kenya after Presidential Elections

On December 27, 2007 Kenya’s incumbent president, Mwai Kibaki, was declared the winner of that day’s presidential election.  However, supporters of the Orange Democratic Movement’s candidate, Raila Odinga, contested this decision, claiming election fraud; indeed, according to a New York Times article from January 17, 2008, independent election observers reported that the election was rigged at the last minute to ensure the incumbent’s victory. In response to Kibaki’s swearing-in in January, 2008, violence erupted across Kenya.  At first the violence was related to protests held by Odinga supporters, but it quickly morphed into targeted ethnic violence against the Kikuyu people–the community that Kibaki is from.  In a particularly brutal moment, 50 unarmed Kikuyus were burned in a church on New Year’s Day (warning-there are some graphic images at this link).  All told, in January of 2008, approximately 600 people died and around 600,000 people were displaced.

In response to this situation, Ory Okohllo (a graduate of Harvard Law from Kenya), launched Ushahidi–a platform for tracking events as they unfurled in Kenya.  The platform allows citizens who participate in, witness, or become victims of events to post information via SMS to the Ushahidi platform, which then publishes the information on-line and locates the reported event on a Google map in near real-time.    Over the course of several months, thousands of text messages, videos, and photographs were submitted to the nascent platform–largely via cell phones. As described by the Ushahidi website:

Ushahidi, which means “testimony” in Swahili, is a website that was initially developed to map reports of violence in Kenya after the post-election fallout at the beginning of 2008. Ushahidi’s roots are in the collaboration of Kenyan citizen journalists during a time of crisis. The website was used to map incidents of violence and peace efforts throughout the country based on reports submitted via the web and mobile phone. This initial deployment of Ushahidi had 45,000 users in Kenya, and was the catalyst for us realizing there was a need for a platform based on it, which could be use by others around the world.

Ushahidi was designed specifically to capitalize on cell phones and mobile access to the web because cell phone use in Kenya at the time was more wide-spread than computer use–largely because there was very little infrastructure of land-based internet access through telephone wires or cables.  The materials collected for this first use of Ushahidi have been archived for future use.

What is Ushahidi?

The Ushahidi platform itself is open source and modifiable so that any person or organization can set it up to meet their particular needs for the visualization of information.  According to the Ushahidi “Our Work” page, the platform consists of a simple mashup that pulls user-generated material into a Google map in order to create an interactive interface that allows viewers to see literally where in the world a particular piece of information was generated or submitted.  This is possible because a mashup is an application that pulls data and functionality from multiple external sources via APIs, or Application Programming Interfaces (see our Web Ecology post for more on APIs), in order to create a new service (see Wikipedia for further details on mashups).

According to Ushahidi’s developers (a team of largely volunteer programmers and designers from Africa, Europe, and the United States), the platform needs to be “agnostic,” which is to say, it should be able to work with as many platforms, tools, and devices (i.e., cell phones, cameras, computers) as possible so that organizations can use the platform with whatever technology or materials they already have to hand.  To this end, the Ushahidi Lab is constantly working to integrate new devices and platforms into the system as they emerge.  For example, the team is currently working on creating a smart phone application for sending and receiving rich data from the Ushahidi platform on iPhones, G-Phones, and other multi-media wireless telephone devices.

Because the goal is to make sure that the Ushahidi platform draws seamlessly from multiple data sources, the developers work to ensure two levels of opperability: 1) that software applications that already support information-aggregation get incorporated into the platform; and 2) that the out-flow of information from Ushahidi to users can work with platforms for data visualization other than Ushahidi.  Thus, the platform currently integrates with a variety of platforms on two levels–data that come into Ushahidi for presentation and data that leave Ushahidi for reading.  The platforms that Ushahidi is currently able to draw data from include: Twitter, Jaiku, and Instant Messaging clients of various sorts.  Platforms that can read the visual data produced by Ushahidi include: Grip, Many Eyes, GeoCommons, CMS modules (such as Drupal), and blog plug-ins or widgets (e.g., WordPress, Movable Type, Blogger).

One key challenge that the developers have been working on is devising a means of verifying information as it comes into the the Ushahidi platform.  Currently, verification has to be conducted by a human moderator, but they are working on an automated verification system called “Swift River.”  This initiative will help organizations to verify incoming information from a variety of sources, which will help them to deal with and present massive amounts of reliable citizen-generated data in real-time.

Ushahidi Downloads

Ushahidi is freely available to down load at their home page–simply click on the “Version 1.0–Mogadishu” download button on the left side of the screen.  To download, the following are needed: server space and someone with some programming skill.  The Ushahidi team hopes to have future versions that will be easier for “non-technologists” to use, but for the moment, some minimal setup and tweaking by a programmer are necessary to get Ushahidi running appropriately.  Technical advice is available at the website. Other downloads include modules for Android, Java Phones, and Windows Mobile.

UT Human Rights Archiving and GLIFOS

T-Kay Sangwand, the human rights archivist at he University of Texas Libraries in Austin has contributed a guest post to the WITNESS Media Archive blog to close out Grace Lile’s series for Archives Month last month.  The post discusses a non-custodial archiving arrangement that the University of Texas Libraries has established with the Kigali Memorial Centre (KMC) in Rwanda.  Funded by the Bridgeway Foundation and the University of Texas Libraries, the project–called the Human Rights Documentation Initiative (HRDI)–consists of a collaborative effort to digitize, preserve, and catalogue a variety of documentation from the Rwandan genocide.  In order to accomplish this, HRDI project team members traveled to Rwanda this summer to help KMC set up an archiving system that utilizes the GLIFOS media toolkit–a rich-media storage program and reader developed in Guatemala:

In order to facilitate access to KMC materials, the HRDI has been working with the Guatemala-based company, Glifos, that provides powerful software that allows for cataloging, indexing, and syncing audiovisual materials with transcripts and other materials for enhanced access. Using Glifos, the HRDI built a prototype for a digital archive for KMC and in July 2008, three members of the HRDI project team (Christian Kelleher, T-Kay Sangwand, and Amy Hamilton) traveled to Rwanda to demo the prototype.

A unique piece of this project is the supportive role that the University of Texas Libraries is playing as KMC establishes and maintains their archive.  Specifically, the library is serving as a repository of the digitized materials created at Kigali, while Kigali maintains the original collection of physical paper documents, film footage, or audio recordings.  GLIFOS will allow users in Rwanda to directly access the digital materials held in the Texas repository.  See the entire article at the WITNESS Media Archive for the complete discussion of this project.

As illustrated by the HRDI project at Texas, the GLIFOS program proves to be a good means of cataloguing, indexing, and preserving rich-media content (that is, video, text, audio, and even materials in multiple languages) in a way that allows for ease of archiving and ease of access and use.  A future post on this blog will discuss the technical specifications of GLIFOS in terms of its utility for digital archiving.

Capturing & Archiving Web Pages: UT-Austin Library’s Web Clipper

The following was co-authored with Kevin Wood at the University of Texas Libraries at Austin.  The post describes a promising experimental archiving strategy that the UT Libraries is developing for harvesting and preserving primary resources from the Web.  Special thanks to Kevin for contributing his expertise and time by co-authoring this post.

–Sarah

University of Texas Libraries-Austin’s Web Clipper Project for Human Rights

Developer: Kevin Wood

Example of a Web page clipped from the web for archiving as a primary resource. Image: Kevin Wood, University of Texas Libraries-Austin

Background

In July of 2008, the University of Texas Libraries received a grant from the Bridgeway Foundation to support efforts to collect and preserve fragile records (records that are at risk of destruction either from environmental conditions or human activity) of human rights conflicts and genocide.  These funds are helping the library to develop new means for collecting and cataloguing “fragile or transient Web sites of human rights advocacy and genocide watch;” sites that are important because the internet has become a primary means for distributing both information and misinformation about human rights abuses and for documenting human rights events.  Thus these fragile Web sites become valuable primary resources for survivors, scholars, and activists as they pursue their work in human rights (see the library’s grant announcement for a press release on the grant).

Harvesting Web Sites for Archiving

In their first attempt to establish a reliable means for harvesting Web sites for preservation, archivists at the University of Texas Libraries used Zotero, a free Firefox extension that allows users to collect, manage and cite online resources for research.  The program allows users to capture copies of webpages and catalog them in a bibliographic program that functions much like End Note or Book Ends. Archivists at the University of Texas planned to use the program to pull specific documentation of human rights events off of the internet and then submit the collected pages to their institutional repository for cataloging and preservation.  However, Zotero wound up not meeting their needs. Zotero is geared toward individual work from a desktop, therefore, when it harvests a page, it changes links to be relative to the individual’s desktop rather than saving the original links as they are built into the webpage of interest—in terms of archiving and preservation, this is problematic because it calls into question the authenticity of the captured pages.  Zotero can be made to keep the original links, but it was not originally designed to do so, so this becomes a cumbersome process and as Zotero continues to evolve in the direction of meeting the needs of individual users, this work-around process becomes that much more difficult to maintain.

The solution for this problem is the in-house creation of a custom web clipper program that harvests pages without modifying them. It functions as a Firefox plug-in and was built from the bottom up borrowing heavily from open source programs that already have some of the right functionality for the libraries’ human rights archiving needs.  The designer wants to keep the coding footprint of the web clipper as small as possible to minimize the deployment and maintenance burden.  Therefore, the main logic of the clipper will be hosted on a server and accessed on individual machines or terminals through web services.  Eventually, this will allow patrons to use the clipper from anywhere in the library system as a harvesting tool.  The goal is to centralize the clipping process as much as possible without the need of customizing individual machines, thus streamlining collection, cataloging, and preservation processes.

The prototype clipper is currently housed on two computers at the library in Austin and graduate research assistants are actively clipping web pages for archiving.  As they clip a page (see the image above for an example of a clipped page) , users enter metadata in predetermined fields and then assign descriptive terms as tags for subject and content cataloging. Users can either select from a thesaurus of human rights terms (in this case, they are beginning with the thesaurus from WITNESS and extending it with terms as appropriate) or assign arbitrary keywords.  Though users have complete control over clipping, documenting, and tagging a Web page, a moderator or manager determines if new terms should be added to the thesaurus.

Regardless of whether a new term makes it into the thesaurus, the pages clipped by users get stored in the archive.  Once items are clipped and tagged with descriptive terms, they are ingested into the UT Libraries’ institutional repository, based on DSpace.  Metadata are stored in the repository with a link to a local instance of Internet Archive’s  Wayback Machine.  These copies appear exactly as the pages appeared when the material was first clipped and submitted for preservation, thus maintaining their value as primary resources.

Best Practices for Human Rights Archiving & a Push by WITNESS

In a post titled “Archives Month: Focus on Human Rights”, Grace Lile of WITNESS calls attention to a recent UN report, Right to Truth from the United Nations High Commissioner for Human Rights that contains best practices related to human rights archiving. This annual report created by the Human Rights Council  highlights the importance of good documentation collection and preservation practices for upholding the mandate of the Universal Declaration of Human Rights and  supporting justice:  In short, documentation is essential for human rights action and careful documentation practices should be a part of the operational mandate for human rights workers.

Also, in honor of Archives Month, Grace notes that  at WITNESS:

we’d like to amplify the topic of Archives and Human Rights, through this blog, and through a series of videos to be highlighted later this month on the Hub.  What is a human rights archive?  How do archives support human rights?  What are the most pressing issues in the field today?    What can be done to strengthen the ability of archives to promote and support human rights?

Despite the increasing recognition of value and need noted by the UNHCHR, the challenges  for documentation centers and archives are daunting, and range from poor documentation on the ground to the long-term preservation of increasingly ephemeral media.   What can be done?  What is being done?  We’d love to hear from anyone who can contribute to this topic.

Please visit the the blog to follow these posts and for more information about other initiatives related to archiving in human rights and contribute your input on the questions WITNESS is asking.