Privacy and Veracity Implications of the Use of Satellite Imagery from Private Companies as Evidence in Human Rights Investigations

Privacy and Veracity Implications of the Use of Satellite Imagery from Private Companies as Evidence in Human Rights Investigations

By Hannah Kannegieter

International Criminal Court (“ICC”) prosecutors and human rights groups rely on satellite imagery as evidence of international criminal behavior.^[1] This data is especially helpful when investigating or prosecuting crimes within the ICC’s jurisdiction, such as war crimes, genocide, and crimes against humanity.^[2] Satellite images can provide information on conflict zones that would be challenging to gather on the ground.^[3] Further, these crimes are often extremely difficult to prove, and satellite imagery can certainly make investigators’ jobs easier.^[4]

Despite these benefits, however, satellite data collection also raises some concerns.^[5] First, there is a tension between human rights groups’ reliance on satellite imagery with their advocacy relating to the human right to privacy. Second, there are problems with satellite data’s reliability, particularly in terms of veracity and availability.  Most satellite data is initially collected by private companies.^[6] Thus, a private third party, though unseen in most human rights reports or legal proceedings, could influence seemingly objective data.^[7] States also exert control over geospatial data companies, further influencing how data is collected.  Moreover, obtaining satellite data may be cost-prohibitive for both the ICC and the human rights organizations.  This Article will examine how these concerns might be reconciled to allow continued reliance on satellite data in human rights investigations.

I. Satellite Data and the Right to Privacy

The right to privacy has long had a place in international human rights law. In 1948, the Universal Declaration of Human Rights proclaimed that “[n]o one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence . . . Everyone has the right to the protection of the law against such interference or attacks.”^[8] The International Covenant on Civil and Political Rights (“ICCPR”), to date ratified by 173 states, reiterated this principle nearly three decades later.^[9]

In 2013, the United Nations General Assembly (“UNGA”) issued a resolution reaffirming the right to privacy.^[10] The UNGA expressed concern about the way in which “the rapid pace of technological development . . . enhances the capacity of governments, companies and individuals to undertake surveillance, interception and data collection, which may violate or abuse human rights, in particular the right to privacy . . . .”^[11] It characterized “unlawful or arbitrary surveillance” as any “highly intrusive act” which may violate the right to privacy.^[12] In response to these concerns, the UNGA instructed the Human Rights Council (“HRC”) to issue a report on privacy rights in the digital age “in the context of domestic and extraterritorial surveillance.”^[13] Following the report, the HRC appointed a Special Rapporteur on the right to privacy.^[14] The HRC tasked the Special Rapporteur with reporting on violations of the right to privacy “in connection with challenges arising from new technologies.”^[15] The UN’s recognition of technology’s impact on the right to privacy demonstrates its importance on an international scale.^[16]

The ICC also explicitly recognized the importance of the right to privacy in Prosecutor v. Bemba.^[17] There, the ICC Appeals Chamber explained that certain records were “in principle, protected by a general right to privacy, as an internationally recognized human right.”^[18] Citing the European Court of Human Rights, the Appeals Chamber emphasized that “an interference with the right to privacy may only be legitimate if ‘proportionate to the legitimate aims pursued.’”^[19] The Appeals Chamber concluded that the proportionality principle is also a crucial element of the ICCPR’s privacy protections.^[20]

Human rights groups have also emphasized the importance of privacy rights.  Some have noted that governments and private companies use new technologies to violate personal privacy rights.^[21]  In particular, they have expressed concerns about how surveillance practices have led to privacy rights erosions.^[22]  For example, in China, “widespread … sophisticated surveillance and big data technologies” are used to monitor the Uighur people.^[23] Human rights groups have argued that “these methods … violate rights to privacy,” among other rights.^[24]

Satellite technology may be employed to violate individual privacy rights in many ways, including through surveillance.^[25]  Satellites can monitor an individual’s movements and schedule, by, for instance, showing when a person’s car is in their driveway.  Satellite images may also be used to monitor groups of people and to determine when and where political gatherings are taking place.  Some satellites are even capable of facial recognition.^[26]  Moreover, when combined with other data sources, satellite imagery may be used to build a detailed profile of an individual’s habits and associations.^[27] Satellites can also produce images of private areas of an individual’s property that would not be visible at the ground level, including fenced backyards and portions of a home visible through windows or skylights. Courts have begun to take notice of these privacy violations.^[28] In 2015, the New Mexico Supreme Court ruled that an “aerial search” of a rural property was unconstitutional.  Writing for the concurrence, Justice Chávez emphasized that “the New Mexico Constitution should not be interpreted to give the government the authority to conduct an aerial surveillance over a property owner’s home and curtilage when the owner has taken steps to exhibit an expectation of privacy in those areas unless the government complies with the warrant requirement.”^[29] In general, as satellite technology advances and images are produced in higher resolution, greater detail will become available, the threat to individual privacy rights will be further heightened, and litigation in this area will likely increase.^[30]

Nevertheless, despite the potential individual privacy risks, satellite monitoring “technologies are used in human rights work to uncover and interpret . . . then incorporated into digital platforms to establish and augment evidence through expert testimony in trials.”^[31] Although human rights groups criticize geospatial data companies’ surveillance practices, they often rely on publicly available data from such companies when investigating human rights violations.^[32] They also purchase imagery from private companies that collect geospatial data.^[33] These organizations’ concern for the human right to privacy is in tension with their use of satellite data in human rights reporting. Where human rights groups purchase geospatial data from private companies, they are financially supporting organizations that are may be violating the right to privacy on a widespread scale.^[34]

II. Satellite Data’s Reliability

The role of major powers in influencing geospatial imagery technology also calls its reliability into question. Certain data may be blurred on publicly accessible platforms.  This practice, historically termed cartographic censorship, has been ongoing for centuries but is “still widely practiced,” and is “justified on grounds of national security, political expediency, or commercial necessity.”^[35] Modern forms of cartographic censorship are most frequently used in service of military goals.^[36]  This censorship may be required by law, as in the case of the Kyl-Bingaman Amendment, which limits the permitted resolution of satellite imagery taken of Israel by private entities in the U.S.^[37]  States also make overt attempts to influence satellite imagery, including through litigation against geospatial data companies for failing to blur imagery of sensitive military sites.  Further, states have applied pressure on geospatial imagery companies through public criticism where satellite data has revealed sensitive military information.^[38] Private agreements likely also exist between governments and geospatial data companies to blur or otherwise censor sensitive data.^[39]  Thus, reliance on satellite imagery has the potential to skew human rights investigations, because it could force investigators to rely upon incomplete information. It would be very difficult for human rights groups to rely on publicly available satellite imagery to demonstrate, for example, war crimes that occurred near military bases, given that those sites and surrounding areas are frequently blurred by geospatial data companies.^[40]

The cost of obtaining privately available data to avoid these data omissions will also necessarily limit the scope of human rights investigations.^[41] In addition to the difficulties involved with criticizing a major power, human rights groups would be forced to further drain limited financial resources, which may incentivize them to focus on less resource-intensive investigations into less powerful states. As the African Union has observed, the international criminal justice system already appears to focus primarily on cases from the Global South.^[42] Several African nations have even threatened to withdraw from ICC jurisdiction because of these concerns.^[43] These data limitations, therefore, are likely to make international criminal law even more vulnerable to a common critique.

Finally, it is unclear how accurate geospatial data from private companies is. There is no independent body verifying that the companies provide accurate data. Compounding the difficulties described above, all of the top ten geospatial data companies are located either in the United States, or in nations closely allied with the United States (Canada, the United Kingdom, and France).^[44] These companies may have also made “national security” agreements with their respective governments. Thus, even if the imagery itself is accurate, certain important data may have been omitted.

III. A Pragmatic Approach to Improving the Use of Satellite Imagery

Despite the problems stemming from investigators’ reliance on satellite imagery, there are solutions that would permit such reliance, while respecting the human right to privacy and improving the data’s accuracy.  By adopting some of these solutions, investigators utilizing the data would also ensure that any potential infringement upon individual privacy rights would comport with the proportionality principle described in Prosecutor v. Bemba, thereby complying with the ICCPR.^[45]

First, human rights groups could alter the way in which they present satellite imagery in their reports. They could avoid publishing aerial photography, and instead merely describe the data collected, or use spatial data. This process could also translate to the ICC. Judges could conduct an initial in-camera review of satellite imagery to determine if making the imagery publicly available would violate individual privacy rights.

Second, human rights investigators should consider including geospatial data risk analyses in their reports. As one commentator has noted, “despite prevailing presumptions about evidence as embodied in objects, evidence must be spoken for,” because data “only takes on meaning as evidence through” its presentation.^[46] Most human rights reports contain information on methodology. Yet reports relying on satellite imagery typically lack an explanation of the potential privacy risks and data inaccuracies that could be generated by reliance on such imagery. In some cases, having evaluated the risks and challenges associated with satellite data, human rights investigators may nevertheless decide to rely on it. Still, including a geospatial data risk analysis in a report would help readers to analyze these data with an appropriately critical eye. Otherwise, readers will likely “[t]reat[] these data as objective forms of knowledge” which “erases the contextual conditions of their production.”^[47]

Next, geospatial data companies should not profit from providing satellite imagery to human rights investigators.  This concept is already embodied in U.S. law in both the civil and criminal contexts. In federal civil proceedings, a court may issue a subpoena duces tecum requiring a non-party to produce documents relevant to a case; that party would typically appear in court as a “witness” to introduce the documents under Rule 45 of the Federal Rules of Civil Procedure.^[48] Federal courts have repeatedly held that a non-party witness cannot charge fees for access to the subpoenaed documents.^[49]  The rationale underlying this rule is that “the duty to provide evidence has long been considered to be almost absolute,” including “the production of documents.”^[50]  Similarly, when police or other law enforcement bodies launch federal criminal investigations, they typically do not charge courts for access to the information they collect. Geospatial imagery companies’ ability to charge investigators fees to obtain copies of satellite imagery that could uncover unlawful killings, for example, is akin to a murder witness asking for the police or a court to pay them to provide information about the crime.^[51] To be sure, prosecutors in domestic criminal cases sometimes reimburse witnesses for reasonable expenses.^[52] Likewise, in federal civil litigation, a court has discretion to reimburse the Rule 45 non-party witness for reasonable costs associated with producing the material.^[53] Similarly, investigators could reimburse companies for reasonable expenses incurred in providing such data.  Nevertheless, geospatial data companies should not profit from complying with their moral duty to provide key evidence to investigators.^[54]

Moreover, allowing companies to profit from international criminal investigations risks skewing information and creating perverse incentives.^[55] If the companies were reimbursed only for reasonable expenses, the diminished cost of collecting satellite data would make it easier for investigators to uncover human rights violations by states in both the Global North and South. Investigators could also use satellites to attribute state responsibility, but not individual responsibility. This would mitigate the individual privacy intrusions, in line with the proportionality principle.

Finally, the UN could create an objective, international fact-finding body to verify the accuracy of satellite data. This body’s role would be particularly important when ICC prosecutors intend to rely on the data at trial. The body could compare images from different geospatial data companies at different points in time. This would mitigate problems with accuracy and state influence over geospatial data.

Human rights investigators rely heavily on satellite technology to uncover serious human rights abuses. This technology has become entrenched in the international criminal legal system, is relied upon heavily in human rights investigations, and seems likely to remain important for the foreseeable future. Nevertheless, investigators can be more responsible about how they collect, analyze, and present geospatial data. Doing so will both vindicate the human right to privacy and preserve the legitimacy of their fact-finding.

[1] See, e.g., Prosecutor v. Al Mahdi, Case No. ICC-1/12-01/15, Decision on Confirmation of Charges, ⁋ 33 (March 24, 2016); James Landale, Sudan Conflict: Ethnic Cleansing Committed in Darfur, UK Says, BBC (October 18, 2023), https://www.bbc.co.uk/news/world-67020154 [https://perma.cc/VH7M-HPP7]; Naomi Larsson, How Satellites Are Being Used to Expose Human Rights Abuses, The Guardian (April 4, 2016), https://www.theguardian.com/global-development-professionals-network/2016/apr/04/how-satellites-are-being-used-to-expose-human-rights-abuses [https://perma.cc/KN6M-U86U].

[2] See Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90.; Prosecutor v. Al Mahdi.

[3] See, e.g., Landale, supra note 1 (describing how satellite imagery was relied upon to confirm that villages had been set on fire by armed militias during the civil war).

[4] See Larsson, supra note 1 (stating that “places where it might be impossible to get to on the ground for safety reasons, or a country with limited access like North Korea, can be reached with satellite imagery, aerial imagery and drone footage.”); see also Steven Livingston, Satellite Imagery Augments Power and Responsibility of Human Rights Groups, Brookings (June 23, 2016), https://www.brookings.edu/articles/satellite-imagery-augments-power-and-responsibility-of-human-rights-groups/ [https://perma.cc/R64K-3QQ2].

[5] See generally Megan M. Coffer, Balancing Privacy Rights and the Production of High-Quality Satellite Imagery, 54 Env’t Sci. & Tech. 6453, 6453 (2020) (explaining “privacy concerns regarding high-resolution satellite imagery,” including “the interests of satellite data providers being prioritized over an individual’s perception of privacy rights”); Christopher Beam, Soon, Satellites Will Be Able to Watch You Everywhere All the Time, MIT Technology Review (June 26, 2019), https://www.technologyreview.com/2019/06/26/102931/satellites-threaten-privacy [https://perma.cc/CDD8-FV6N]; John Thornhill, A Space Revolution: Do Tiny Satellites Threaten Our Privacy, Financial Times (Feb. 15, 2018), https://www.ft.com/content/c7e00344-111a-11e8-940e-08320fc2a277 [https://perma.cc/T4BP-PBL8].

[6] See Therese Wood, Who Owns Our Orbit: Just How Many Satellites Are There in Space?, World Economic Forum (Oct. 23, 2020), https://www.weforum.org/agenda/2020/10/visualizing-easrth-satellites-sapce-spacex/ [https://perma.cc/VW2N-65UD].

[7] See generally Kamari Maxine Clarke & Sara Kendall, ‘The Beauty…Is That It Speaks For Itself’: Geospatial Materials As Evidentiary Matters, 23 Law Text Culture 91 (2020).

[8] Universal Declaration of Human Rights G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948), art. 12.

[9] See International Covenant on Civil and Political Rights, art. 17, Mar. 23, 1976, 999 U.N.T.S. 171. Commercial satellite operators are also bound by international law under the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 1967.

[10] U.N.G.A. Res. 68/167, U.N. Doc. A/RES/68/167 (Dec. 18, 2013).

[11] Id.

[12] Id.

[13] Id.

[14] Human Rights Council Res. 28/16, U.N. Doc. A/RES/76/300 (Aug. 1, 2022).

[15]  Id.

[16] See, e.g., Rep. of the H.R.C., at 48-52, U.N. Doc. A/HRC/51/17 (2022).

[17] See Prosecutor v. Bemba, Case No. ICC-01/05-01/13-2275-Red, Appeals Judgment, ¶ 284 (March 8, 2018)

[18] Id.

[19] Id. at ¶ 331 (quoting European Court of Human Rights Grand Chamber, Khoroshenko v. Russia, App. No. 41418/04, Judgment, ¶ 118 (30 June 2015)).

[20] See id.; International Covenant on Civil and Political Rights, art. 17.

[21] See Courtney A. Poole, Maryland v. King and the Road Already Traveled: How the United Kingdom Tried—and Failed—to Balance State Interests with Privacy Rights, 42 Ga. J. Int’l & Comp. L. 157, 174 (2013) (describing human rights groups’ concerns that the “expanding use of DNA samples” could violate the right to privacy).

[22] See Ashley Deeks, An International Legal Framework for Surveillance, 55 Va. J. Int’l L. 291, 294 (2015) (noting that human rights groups have sought to develop international privacy norms in response to advances in surveillance technology).

[23] Thomas Lum & Michael A. Weber, Cong. Rsch. Serv., R45956, Human Rights in China and U.S. Policy 4-5 (2019). See also Rep. of the H.R.C., U.N. Doc. A/HRC/51/17 ⁋ 45 (2022) (“Several Governments use the results of a variety of public surveillance measures to identify their critics or people not conforming to social expectations, which can lead to harassment, detention or the denial of essential services.”).

[24] Lum & Weber, supra note 23, at 4-5.

[25] See Beam, supra note 5.

[26] Rep. of the H.R.C., U.N. Doc. A/HRC/51/17 ⁋ 44 (2022), available at https://digitallibrary.un.org/record/3985679?ln=en (“One particular concern in public surveillance relates to the recording of photographic images.”).

[27] Id. ⁋ 43 (2022) (“Systematic surveillance of people . . . in particular when combined with additional ways to analyse and connect the obtained information with other data sources, constitutes an interference with the right to privacy and can have highly detrimental effects on the enjoyment of other human rights” including “freedom of expression and peaceful assembly, participation and democracy.”)

[28] See, e.g., State v. Davis, 2015-NMSC-034, ¶ 64, 360 P.3d 1161, 1174 (Chavez, J., concurring).  This case concerned a property search conducted via aircraft, but the principle applies to satellite data as well.

[29] Id.

[30] Thornhill, supra note 5 (explaining that “[t]he lack of global regulations over this new commercial space race, and the speed with which satellite technology is advancing, raise serious questions about the rights of private individuals to remain “hidden” from microsatellites.”).

[31] Clarke & Kendall, supra note 7. See Landale, supra note 1.

[32] Livingston, supra note 4. See also Landale, supra note 1.

[33] See Clarke & Kendall, supra note 7.

[34] Thornhill, supra note 5.

[35] J. Brian Harley, Maps, Knowledge, and Power, in Geographical Thought: A Praxis Perspective 51, 63-65 (George L. Henderson & Marvin Waterstone eds., 2009).

[36] See id.

[37] Section 1064, Public Law 104–201 (National Defense Authorization Act for Fiscal Year 1997).

[38] See, e.g., Bill Chappell, Pentagon Reviews GPS Policies After Soldiers’ Strava Tracks Are Seemingly Exposed, National Public Radio (Jan. 29, 2018), https://www.npr.org/sections/thetwo-way/2018/01/29/581597949/pentagon-reviews-gps-data-after-soldiers-strava-tracks-are-seemingly-exposed [https://perma.cc/WTR3-8S59].

[39] See Matt Korda, Widespread Blurring of Satellite Images Reveals Secret Facilities, Federation of American Scientists (Dec. 10, 2018), https://fas.org/publication/widespread-blurring-of-satellite-images-reveals-secret-facilities/ [https://perma.cc/A3BD-2X8Q] (arguing that the geospatial imagery company Yandex has likely reached an agreement with the Turkish government to censor military sites).

[40] See id; supra note 37.

[41]      See Luiz Romero, Blurry Satellite Images of Palestine and Israel Make Rebuilding Harder, Wired (May 20, 2021), https://www.wired.com/story/blurry-satellite-images-palestine-israel-make-rebuilding-harder/ [https://perma.cc/2H9Q-EXHA] (arguing that “[f]or the vast majority of activists and organizations, buying commercial satellite imagery is extremely expensive … an image of a small piece of land will cost thousands of dollars if it needs to be produced anew, and hundreds of dollars if it’s available in the company’s archive”). See generally Planet: Nonprofit Program, https://www.planet.com/nonprofit/ (last visited 25 Oct. 2023) [https://perma.cc/TC9Z-9RFL] (on the cost to non-profits to use satellite data).

[42] See Jean-Baptiste Jeangene Vilmer, The African Union and the International Criminal Court: Counteracting the Crisis, 92 Int’l Affairs 6, 1319–42 (2016).

[43]See Emmanuel Igunza, African Union Backs Mass Withdrawal From ICC, BBC (Feb. 1, 2017), https://www.bbc.com/news/world-africa-38826073 [https://perma.cc/L87G-SXVR].

[44] Muthukumar Kumar, 2019 Top 100 Geospatial Companies and Startups List, GEOAWESOMENEESS (Jan. 14, 2019), https://geoawesomeness.com/2019-top-100-geospatial-companies-startups/ [https://perma.cc/Q5VB-Y5DH].

[45] See Prosecutor v. Bemba, supra note 17.

[46] See Clarke & Kendall, supra note 7, at 93.

[47] Id. at 113.

[48] See Livingston, supra note 4 (noting that a primary function of artificial intelligence in relation to satellite technology is “to bear witness”).

[49] See Klay v. All Defendants, 425 F.3d 977 (11th Cir. 2005) (dismissing a non-party witness’s argument that it should be paid the license fee it normally charged its clients for providing the documents detailed in a subpoena); In re Grand Jury No. 76-3 (MIA) Subpoena Duces Tecum, 555 F.2d 1306, 1308–09 (5th Cir. 1977); In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 251 (E.D. Pa. 2014) (noting that non-party subject to subpoena duces tecum “[is] not entitled to compensation beyond the costs associated with producing the material”); Cohen v. City of New York, 255 F.R.D. 110, 120 (S.D.N.Y. 2008).

[50] In re Grand Jury No. 76-3 (MIA) Subpoena Duces Tecum, 555 F.2d 1306, 1308–09 (5th Cir. 1977).

[51] See Cohen v. City of New York, 255 F.R.D. 110, 120 (S.D.N.Y. 2008) (“[T]he observations of a witness cannot be commercialized. … [T]here is little doubt that a court would enforce a subpoena for the evidence without requiring the litigants to pay a fee….”).

[52] See, e.g., United States Attorney’s Office Western District of Washington, Victim-Witness Program Witness Information, United States Department Of Justice, https://www.justice.gov/usao-wdwa/victim-witness/victim-witness-program-witness-information [https://perma.cc/Y82T-5P5T] (explaining that witnesses receive a fee for each day they are required to be in court).

[53] See Klay v. All Defendants, supra note 49.

[54] Given that the ICC is largely dependent on voluntary state cooperation to gather evidence, these requirements could be imposed by state parties to the Rome Statute. See Witnesses before the International Criminal Court, Int’l Bar Assoc. ICC Perspectives (July 2013), https://www.ibanet.org/document?id=July-2013-Witnesses-before-ICC [https://perma.cc/NDS9-LX9K].

[55] See Cohen v. City of New York, supra note 49 (noting that, if the provision of evidence were profitable, “an entrepreneur [might] set up a camera at a busy intersection hoping to record an automobile accident and then sell the film to the parties in the resulting tort suit”).