Thank You for Joining "Shall We Press Play?" – Navigating AI and Evidence in the Digital Age

Insights and Discussions on Ensuring Authenticity in Digital Evidence

A warm thank you for joining us yesterday (Tuesday 16 July) for our enlightening event, "Shall We Press Play? – Evidence Considerations in an Age of AI." We were thrilled to see so many of you interested in this critical discussion about the authenticity and verification of digital open-source imagery (OSI) in today's AI-driven world.

Event Recap

Our expert panel, featuring Prof. Yvonne McDermott Rees from Swansea University and Jonathan W. Hak KC PhD, a seasoned Crown Prosecutor from Canada, led us through a comprehensive exploration of the challenges and opportunities presented by generative AI in the realm of digital evidence.

Introduction and Context: We began with a discussion on the rise of generative AI and its broad accessibility to all. With AI tools now available for as little as $20/month, the creation of photorealistic but inauthentic evidence is no longer limited to advanced disinformation campaigns by nation-states. This democratization of technology has significant implications for the authenticity of OSI, as evidence already subjected to intense scrutiny due to the unavailability of the original author to testify is now further cast into doubt by potential reflexive calls of fakery.

Core Topics:

• Admissibility vs. Weight: Considering our mixed audience including non-legal professionals, our panelists began by debunking the notion that admissibility of digital evidence is the primary issue, emphasizing instead the importance of weight and probative value of the evidence, most notably in international jurisdictions. Both emphasized that instead of aiming to “make it” to admissible evidence, investigators ought to “aim as high as possible” to not be caught out. They referred to the recent Al Hassan ICC judgment (26 June 2024) to highlight how little guidance practitioners might receive from the court with regards to admissibility and weighting. Best come prepared!
  

• Prejudice and Authenticity: The discussion then moved to the potential prejudicial effects of inauthentic material on judicial processes. Our panelists emphasized the concept of "seeing is believing," highlighting how visual evidence can heavily influence jurors and judges. The power of images to create lasting impressions makes it difficult for fact-finders to "unsee" evidence, even if its authenticity is later questioned. This challenge is compounded by the strong emotional responses visual materials can evoke. To mitigate these prejudicial effects, rigorous technical interrogation and verification of digital evidence are essential before presenting it in court, helping protect proceedings from being compromised by misleading visuals–which are by now too likely.
  

• Technical Interrogation: Further to the point above, we explored the necessity of comprehensive technical interrogation before viewing evidence, discussing its legal and ethical implications. Our panelists referenced the Berkeley Protocol on Open Source Investigations, which notes the importance of technical analysis in assessing the authenticity of digital evidence. We believe this analysis should include verifying the provenance and integrity markers (the objects of our research at Starling), supporting the verification of digital materials.
  However, while rigorous technical interrogation might help prevent prejudice by filtering out falsified evidence, it also risks discounting authentic evidence that may lack sophisticated markers due to technical limitations or resource constraints. Balancing the thoroughness of technical verification with the inclusivity of all relevant evidence is crucial in maintaining the integrity of judicial processes.

Audience Q&A

The event concluded with an engaging Q&A session where we tackled questions about:

• The need for legal education and training to adapt to these new challenges for all involved in proceedings, be they judges and fact-finders but also experts and investigators. 

• The role of the Confrontation Clause in U.S. settings, as guaranteeing a defendant's right to confront their accuser, which could (should?) include the possibility to challenge the authenticity and reliability of digital evidence presented against them.

We sincerely hope that you found the discussion as insightful and thought-provoking as we did. Your participation and questions enriched the conversation and highlighted the importance of community engagement in navigating these complex issues.

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Thank you once again for joining us. We look forward to seeing you at our future events as we continue to explore the intersection of technology and justice. I have several such events planned and hope to convene us again in August and September.

Until then,
Basile