Symposium on Forensic and Counter-Forensic Approaches to International Law: Digital Evidence and The Gaze – A Conceptual Framework for Analyzing Digital Evidence Through a Foucauldian Lens

[Christine Carpenter is an international lawyer, and a Gates Cambridge Scholar and PhD Candidate in international relations and politics at the University of Cambridge]

To live in a crisis zone today is to be watched, recorded, and broadcasted—often without one’s knowledge or consent. Digital evidence plays a central role in investigating international crimes and human rights abuses—as has been demonstrated vis-à-vis Israel’s atrocities in Gaza in the UN Special Rapporteur’s report on the Occupied Palestinian Territories, Anatomy of a Genocide, and Forensic Architecture’s digital forensic investigation, Cartography of Genocide. The utility of digital evidence in documenting such harms and creating a catalogue of evidence for the purpose of future pursuits of accountability cannot overstated. This is particularly true in contexts such as Gaza, where traditional means of evidence collection are rendered impossible by continued denial of access to the sites of atrocity and/or by the danger involved in dispatching a team to investigate on the ground. 

Yet, in the rush for information, we often overlook how this evidence is collected and the power dynamics implicated through that process. To address this oversight, this post introduces a conceptual framework for analyzing digital evidence that centers issues of power, subjectivity, agency, and truth. This conceptual framework reexamines digital evidence through a Foucauldian lens and interrogates how power operates in the production, collection, interpretation, and use of such evidence. The objective of this piece is to explore what this reframing might reveal about current approaches to digital evidence, including limitations, ethical risks, and the implications for those it depicts.   

Foucault as a Conceptual Framework for Digital Evidence

Michel Foucault’s theories and their progeny, particularly those around surveillance, knowledge-power, and truth formation through archival process, offer a relevant lens for uncovering the subtle, oft-overlooked control structures embedded in digital evidence practices.

Beginning with surveillance, David Lyon, a foundational scholar of surveillance studies, defines surveillance as “the focused, systematic and routine attention to personal details for the purpose of influence, management, protection or direction” (p. 14). Surveillance involves a principal and a subject—the latter’s actions are monitored by the gaze of the former, creating an anticipatory behavior loop where the subject’s actions proactively comport to the principal’s desired or expected behavior and self-censor out undesired behavior. Foucault’s concept of the panopticon, derived from Jeremy Bentham’s prison design, centers on this internalization of control through the possibility of being watched at all times. As Deleuze has shown, this dynamic quickly expands to one of pervasive social control. 

In terms of how surveillance manifests in the digital evidence ecosystem, digital evidence is often produced through continuous, ambient surveillance—i.e. social media content, GPS location tracking, satellite images, and other forms. The constant potential to generate evidence encourages self-monitoring, a core idea of panopticism.

The use of this framing is important because surveillance is neither passive, nor neutral. As Carissa Véliz notes, “to impose surveillance upon someone is an act of domination” (p. 41-42). Indeed, critical surveillance scholars have long shown that surveillance is deeply entangled with systems of oppression, including racism and colonialism. As an analogue of surveillance practices, digital evidence, and its impact on those it captures, can better scrutinized through surveillance-related consequences like discipline, control, and oppression. Surveillance theory opens up a vernacular for discussing the power dynamics implicit in digital evidence–i.e. power is held by the principal to determine (via algorithmic and other incentives) what information is prioritized, valued, and indeed even deemed true. Meanwhile, those whose experiences are reflected in digital evidence may be subject to a similar disenfranchisement to the surveillance subject, where suffering must be auditioned to this disembodied, authoritative gaze in order to provoke action. Under this lens, where the harms and suffering conveyed through digital evidence—and indeed, digital content much more broadly—do not lead to meaningful response, but instead become caught in wheels of the international legal system to no avail, this in itself can be argued to have an oppressive effect:  the non-response in the face of so much evidence thrust before the gaze of the international legal system and the global powers that steer it become its own kind of domination.  

This conversation also implicates longstanding relationships between knowledge formation and power. Afterall, the creation of an evidentiary catalogue for use in legal proceedings—including the processes of collection, authentication, and categorization—represents, in Cornelia Vismann’s words, the “emergence of the notions of truth” (p. xii).  Foucault’s concept of knowledge-power argues, “Power and knowledge directly imply one another…there is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not presuppose, and constitute power relations.” Exercising control over determinations of what constitutes truth creates knowledge, and controlling what comprises knowledge begets power; inversely, power provides the ability to dictate knowledge. This post agrees with Isabella Regan’s assertion that acquiring digital evidence for legal use is a “knowledge formation project” rooted in Foucault’s concept of power/knowledge. Applying this framing to digital evidence production, Regan argues: “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.”

When layered on top of the surveillance-like dynamic of digital evidence, it is not a coincidence that the authorities for whose gaze digital evidence is accumulated are the same entities empowered to determine its truth content, its relevance, and by extension, its value. On the one hand, this is a natural aspect of legal process—and indeed, a key point of it. The very function of a judicial system is to gather and use evidence in order to make factual determinations and mediate truth. However, we must also scrutinize the epistemic authority of these institutions, as that authority marginalizes other forms of knowledge or interpretation. Moreover, digital evidence—like surveillance—is not neutral. Rather, it is curated, selected, and contextualized by those in positions of relative power.

Finally, Foucault’s The Archaeology of Knowledge dovetails with the application of knowledge-power theory, suggesting that the formation of archives—digital or otherwise—both reflects and shapes what knowledge is possible. The archive that is ultimately formed represents a series of choices from the larger possibilities—what gets included, and is thus deemed credible, useful, authoritative, etc., versus what is excluded, and is thus deemed as unreliable, irrelevant, or unimportant. What results is a “regime of truth”—here, a space governed by rules about what constitutes evidence, who may speak to their experiences, how statements regarding these experiences are classified, and how narratives are designated as true and valuable, or not. Thereby, those in positions of decision-making positions over digital evidence are empowered to decide what it is, what it is not, and why and when it is accepted as truth.

Jeff Deutch has tied this notion to digital evidence collection in writing about his experience with digital archive formation in the Syrian Civil War. He determines that, “A multiplicity of truths, framed through a variety of disciplinary lenses, introduces more questions than answers and problems for the accurate reporting of unfolding events. A balance must be struck between recognizing these tensions and the need for human rights communities to highlight social injustices.” The solution for which Deutch advocates is not to abstain from digital evidence collection, nor the creation and use of these digital archives in investigating human rights abuses, but rather that we do so with the understanding that every addition or exclusion to that archive represents a choice—one rooted in our own subjectivities—and that choice has a considerable amount of power when forming narratives of justice and accountability are at stake.  

Applying a Foucauldian Lens to Digital Evidence Production in Gaza

This piece briefly applies the above framework to digital materials emerging from Gaza—offering one example of ethical concerns about what gets included in digital evidence and another about what is excluded. These examples, which are discussed mainly in relation to surveillance for the purpose of space, illustrate limitations of digital evidence and raise concerns about how its use might perpetuate harmful dynamics, stripping narrative agency from the very communities that international justice mechanisms purport to serve. 

Viewed from a Distance: Lateral Surveillance of Atrocities on Social Media

To explore the ethics of what is included, consider lateral surveillance—i.e., peer-to-peer monitoring via smartphones and social media—as a lens for viewing social media footage produced in Gaza, resulting in a flood of open-source material. Traditionally seen as asymmetrical monitoring among citizens, social media has shifted this into “mutual monitoring,” which scholars argue creates power imbalances that impact social behavior (p. 577). In violent conflict, this monitoring can amplify extreme harms. 

Scholarship on digital evidence has raised ethical concerns related to the risks and benefits of platforming such content, the incentive structures implicit in said platforming, and the frequent lack of consent from those captured in it. This post would take that scrutiny a step further by applying a lens of surveillance, in which those captured in digital evidence are compelled to be subjects to the gaze of a larger surveillance apparatus. Doing so begs the question—who is the true surveillance principal?  At first impression, it appears to be those doing the recording. But through our conceptual framework, the real principal in digital evidence collection is the distant viewer—whether an activist, journalist, policymaker, or legal professional—who determines what content is important, relevant, credible, and legally useful. These distant viewers, often thousands of miles away, wield power by shaping what enters the evidentiary record, which is its own kind of archive. Though they did not create the content from their own experiences, they define its truth-value, thereby shaping the historical narrative of atrocity. The knowledge generated through this evaluative process becomes power—and reinforces existing hierarchies.

We now know that the existence of surveillance impacts human behavior, and even brain function, by creating a persistent hyperawareness of an imposed gaze that alters everything from overt behavior to subconscious levels of social anxiety. Where the creators of digital evidence—and digital content more broadly—in violent conflict zones are made to function as surrogate-surveilleurs of these distant institutions, those institutions have a duty to ask how the intrusion of that gaze impacts those experiencing these atrocities. While the eventual use of this content may be argued to justify these effects, that assessment must be made transparently and proactively, with ample input from those impacted by a given conflict. This could involve incorporating such questions into the research plans for investigations (which some organizations do already), modifying collection efforts so as to not incentivize collection or creation of harmful content, or for more extreme instances, developing formalized standards for evidence admission based on conformity with certain ethical guidelines (something akin to the “fruit of the poisonous tree” doctrine in UA Fourth Amendment jurisprudence). Otherwise, digital evidence risks reinforcing oppressive power dynamics by placing in the hands of a remote third-party the cost-benefit analysis of whether the utility of digital evidence aspirationally created through this constant monitoring outweighs the harms of constant, multi-layered surveillance—which includes the process through which this distant surveillance principal decides what of the digital content gathered through surveillance qualifies as evidence, and is itself an exercise of power (or, to use Véliz’s term, domination)over the surveillance subject.

What the Reproductive Surveillance Gaze Misses about Women’s Suffering 

Turning to what is excluded, we see a different danger: certain harms—particularly gendered or reproductive harms—may be underrepresented in a digital evidentiary record due to biases in the reproductive surveillance gaze. Reproductive surveillance has many relevancies, particularly today, but as a broad topic can be understood as the exercise of an institutional or authoritative gaze over the process, experience, and physical components of reproduction—particularly for women. In the context of digital evidence, the products of reproductive surveillance often center a story of acute sexual or reproductive violence (i.e., sexual assault or enduring childbirth without medical care).

What is then lost when these experiences are centered through digital evidence, which adopts the gaze of the distant surveillance principal rather than that of human subjects? Ample literature has focused on the fallibilities of digital evidence with regard to sex and gender-based violence (SGBV). This post meanwhile focuses on quieter, sustained harms—like miscarriage, menstrual disruption, or chronic violence, distinct from more graphic instances of violence like rape and assault—that may often go un(der)documented and un(der)recognized because they do not align with the expectations or attentions of distant observers. These types of harm are thus put at risk of being disregarded in the accountability narrative surrounding a crisis.

Reproductive surveillance is particularly relevant in Gaza, where experts and organizations have raised allegations of genocide—including acts aimed at preventing reproduction. Yet while these sources of authority are shrewdly undertaking a calculus (and have for over a decade) that manipulates the realities of reproduction, to the masses, this remains a largely taboo subject from which the gaze is often averted. Such is the concern with digital evidence.

This is further complicated by social media’s bias toward the sensational and graphic, even for content regarding humanitarian crises, which drives up content interaction and thereby incentivizes further dissemination. Thus, when reproduction-related content is shared, it often intersects with these viewer preferences—hence why the content frequently shared in relation to Gaza concerns some of the more gruesome examples of reproductive violence, such as women being forced to undergo C-sections without anesthesia.  

Accordingly, the less visible instances of reproductive violence are at risk of being doubly ignored—for both being too taboo, and/or not sensational enough. This is a crucial gap to consider in the context of seeking to prove international crimes. Taking as an example the allegations of genocide, Israel’s starvation of Gazans would logically lead (and has been shown to lead) to women losing their cycles and experiencing miscarriages at staggering rates. Evidence of this would support allegations of the crime of genocide, which includes “[i]mposing measures intended to prevent births within [a] group.” Yet these types of harm are less likely to be captured by digital evidence. In a situation like Gaza, where other forms of evidence gathering are distinctly challenging to deploy, building an awareness of the absent harms contained in an evidentiary catalogue is all the more crucial, to ensure these harms are captured through other means and not excluded from the larger accountability narrative arising from the conflict.   

Conclusion

Through a Foucauldian lens, digital evidence is not simply a technical or legal tool—it is a mechanism of modern power. It disciplines, categorizes, and surveils subjects, often with the air of neutrality or objectivity. But the production and use of digital evidence reinforces existing power structures, embeds surveillance deeper into social life, and normalizes the constant visibility of individuals living in circumstances of extreme violence and suffering—who are often documented without their knowledge or consent. None of these concerns are to negate or detract from the genuine and numerous benefits of digital evidence. Rather, the aim of this post has been two-fold: (1) to show how interdisciplinary framings and concepts may equip digital evidence practitioners and scholars to dissect the potential risks and harms posed by reliance on digital evidence, and (2) to center the concerning power dynamics raised here that might otherwise be overlooked in the international legal community’s rush to pursue familiar means of legal of accountability.