Symposium on Fairness, Equality, and Diversity in Open Source Investigations: Power to the People? Private Power and Empowerment in Open-source Investigations of International Crimes

[Isabella Regan is a PhD candidate in criminology at Erasmus School of Law (Rotterdam, NL), researching public-private power dynamics within online open-source investigations of international crimes.]

This blog arises from her thesis on public-private power dynamics within online open-source investigations of international crimes. All comments and feedback are welcome at regan@law.eur.nl.  

Over the past decade, online open-source information – such as social media posts, videos, satellite imagery, and official documents – has become of increasing importance in bringing international crimes and other serious human rights violations to light. Due to the complex conflict-ridden context in which international crimes are committed, along with accessibility issues and political resistance, physical evidence collection for the purpose of criminal accountability has been problematic. Both public and private – or non-official, citizen – investigators have therefore grasped the opportunities that the widespread availability of online information about potential international crimes offered them, while trying to navigate the related challenges. 

Private party involvement in online investigations of international crimes has both been welcomed and critiqued. On the one hand, the development has been described as ‘democratizing’ due to accessibility of data, shifts in information control and less reliance on official public communications. On the other hand, these private parties have no official legal position – and thus no legally-backed power – within international criminal investigations. Private actors taking up a public task (collecting criminal evidence) has led to questions on the trustworthiness, ethics, practicalities and legality of their work. It could be argued that these last points of criticism are shaped by the idea that state legal power is the status quo. Otherwise put, only the state (or a public authority), by virtue of the law, has the legal and political power to conduct criminal investigations and thus to collect open-source evidence. 

Most recently, private parties’ involvement in online open-source investigations of international crimes has expanded and professionalized. To illustrate, after Russia’s invasion in Ukraine in February 2022, open-source investigators stepped up in archiving and analyzing online information. Within days, private open-source investigators had formed online investigative communities, started to verify footage, and fact-checked official government statements by both warring parties. The added value of these private initiatives for official investigations has continued to be acknowledged by numerous public authorities, for example in an European Parliament briefing. In addition, organizations involved in these investigations, such as Bellingcat and Global Legal Action Network, have recognized the need for high-quality evidence and developed methodologies to assure a criminal law standard of proof.

Bringing Power to the Equation 

A lack of or imbalance in legal investigative power confuses the involvement of private actors in online open-source investigations of international crimes. Legal power in the context of international criminal justice is frustrating enough, as it is already limited by political processes and lack of jurisdiction. What’s more, despite private involvement in international criminal justice efforts over the past three decades, the legal asymmetry between public and private investigating parties remains to exist. As a result, private parties entirely lack the legally-backed power that is assigned to public investigative authorities. 

In the context of online open-source investigations, private involvement can generally be seen as a bottom-up process in which private actors step up to fill gaps left open by official investigations and to overcome issues of state-led investigations. These private actors hereby take up an active role in the online investigatory field and, in doing so, drive public authorities to think about how the online information gathered by private actors relates to official public criminal investigations. In contrast to situations in which public authorities may delegate responsibilities to non-state actors – often dubbed ‘the process of responsibilization’ – the relationship between public and private online investigations in the situation described above is not clear-cut. 

However, in practice, power dynamics are more than just legal and political power – as I will discuss further below. In turn, the deficit of legally-backed power that private parties have when conducting online investigations leads to questions on how their involvement can help towards more openness, fairness and equality within open-source investigations. Otherwise put: can private involvement tip the balance of power within online open-source investigations of international crimes? 

These discrepancies in types of power result in somewhat of a power conundrum, because what does power entail in the context of online open-source investigations of international crimes? And importantly: what does this mean for the practice of these investigations, especially regarding equality, diversity and fairness in public and private online investigations and communities? 

In this contribution to the symposium on Fairness, Equality and Diversity in OSINT, I argue that private involvement in open-source investigations of international crimes forces us to look further than the state’s legally-backed power as the status quo. Rather, we should work towards recognizing the types of power that private parties have to challenge existing power dynamics and to explore equality and empowerment within this context. 

Private Power is… Networks and Knowledge?

For the purpose of this contribution, I do not intend to delve into philosophical debates on what is the meaning of ‘power’. I will, however, introduce a way in which we can see how private parties may impact power dynamics within the context of open-source investigations of international crimes. Power and power dynamics depend on the social context in which they are manifested. In the current context, as described above, international legal and political power dynamics play a significant role, but they are not the only sources of power. Instead, I believe, that unique characteristics of private involvement in online open-source investigations give rise to a discussion on what power private parties bring to the investigations table.

As an example, Foucault’s concept of power/knowledge can be useful to help map out private and public power relations. Foucault believed that power takes place within a system of power relationships that allows knowledge to exist Knowledge may impact what is considered to be the truth and, in turn, may in itself constitute power. It can be used to help analyze who has power, influence and knowledge – but also to consider who is silenced, whether hidden or implicit, intended or unintended, within that system of power. A full-blown empirical analysis of this mapping goes beyond the intention of this essay, but I will illustrate the way of thinking by delving into some private open-source investigations’ distinctive features.

Whereas above I suggested there is a legal power asymmetry between public and private parties within the international criminal justice system, in relation to knowledge, perhaps there is an information (knowledge) asymmetry between public and private actors that tips the balance the other way. Thus, we could consider private parties’ power to be the knowledge they have, develop and disseminate among others. Three features of private online investigations aid towards this argument. 

First, the online and cross-border nature of open-source investigations means that it is easy to form online communities of individuals and organizations. As a result, there is a magnitude of online networks and collaborations through which knowledge is gained, developed (e.g., methodologies), and disseminated. 

Second, these investigative communities consist of a large variety and number of private organizations and individuals from various professional – and sometimes amateur – backgrounds with expertise covering topics, such as OSINT, weaponry, visual evidence, human rights, and much more. Private knowledge thus embraces all facets needed in an open-source investigation. 

Third, short lines of communication between private parties, technology companies and human rights organizations means that knowledge on new technologies among these networks and collaborations is high. This results in private parties being able to innovate and develop new open-source technologies and build each other’s capacity to conduct sound investigations. Something that public authorities, often due to a lack of capacity, finances, flexibility or resources, are unable to do as effectively. 

It is true that public authorities are often involved in these collaborative networks. A prime example hereof is the development of the Berkeley Protocol on Open Source Investigations, in which representatives from both public and private organizations participated in workshops. However, it can still be questioned to what extent public authorities are able to ‘keep up’ with private parties’ fast pace in open-source investigations. As a result, whether public participation in these efforts can counter the significant role of private parties in shaping knowledge and truth within the context of open-source investigations can be contested. 

(Dis)Empowerment and Equality

Even if we assume that private power is based on networks, knowledge and innovation, we can still question what this power means in legal practice in terms of empowerment and equality in international criminal justice. There are risks in trying to conclude too quickly that private party involvement may lead to more fairness, equality and empowerment within the international criminal system. Two imbalances may come into play: that between public and private parties, and that between private parties themselves.

How private power-knowledge is conceived and used remains dependent on the willingness, understanding and attitude of public prosecutors. How public authorities use the information and communicate with private investigators could either bolster or render feelings of empowerment. Would private investigators feel empowered when public authorities receive the information and then shut the door? Is it still empowering for private open-source investigations to be copy-pasted by public authorities, without being recognized nor acknowledged? 

Furthermore, imbalances between smaller and larger or national and international private investigators should not be overlooked. Open-source investigations, as a democratizing process that leads to more equality, would assume that a larger group of investigators is involved. However, considering the knowledge asymmetry described above, it can be questioned whether this is the case in practice. To what extent is the capacity of smaller organizations being built, so that not only the well-known community members benefit from private power/knowledge and are able to thrive? Does the involvement of private parties in these processes lead to more equality and empowerment of those seeking to investigate conflicts that are overlooked or less on the public radar? Or are we moving into (or have we already found ourselves in) a situation in which there is simply a new type of power – one dominated by private organizations of the Global North – that is behind the legal throne?

Power to the People? 

When discussing fairness and equality within online open-source investigations, it is relevant to address how different actors involved in these processes experience their position and power dynamics that come into play when interacting with public investigative authorities. By looking further than state’s legal power as the status quo, discrepancies between the law and legal practice when private organizations play a considerable role herein become more visible. This is particularly true in the context of open-source investigations of international crimes, as private involvement allows us to look beyond divisions that are made between the roles and responsibilities of ‘public versus private’ or ‘official versus non-official’. 

Legally speaking, it could be argued that legal power shifts are not possible: public investigative authorities remain responsible for evidence collection and investigative procedures. Private actors should move within the legal boundaries that are provided and their work should be used only to the extent that official public investigators deem necessary. True ‘democratization’ within the context of international criminal investigations thus may have to depend on public authorities’ stance and willingness to cooperate. This raises the question whether extensive methodologies and protocols for private open-source investigators can overcome these issues. 

The involvement of private parties in open-source investigations thus has the potential to overcome issues of inequality and lack of transparency within public investigative processes. The unique characteristics of these private efforts and the strengths that private involvement has in terms of networks, knowledge-sharing and innovation can aid towards these goals. However, unintended outcomes of these power dynamics and experiences of (dis)empowerment among the wide variety of private parties must not be overlooked. Especially issues regarding equality in terms of who is investigating – related to knowledge-distribution in the Global North-Global South – and what conflicts are being investigated. 

I believe that further discussion on the asymmetries between public legal and political power versus power dynamics in practice is needed to explore whether ‘the people’ are indeed the power behind the criminal investigations throne or whether it is still the public powers that be.