January 21, 2016, 12:00 p.m.–January 22, 2016, 7:00 p.m.

Rebecca Wexler: A Rule of Equivalents | Video as Big Data Collection for Purposes of Investigation and Trial

Maurer School of Law

As part of our inaugural lecture series, Rebecca Wexler, a founding director and instructor for the Yale Visual Law Project, discussed the relationship between documentary photography and the law. In doing so, she challenged the seemingly evidentiary nature of digital images in the courtroom and questioned the ethics of using proprietary software as an investigative tool.

Wexler opened with the image of a man lying motionless in a field, his white shirt covered in blood. It was one of many that had been investigated by the UN as evidence of genocide, and it was produced by a software program that isolated still images from video footage. The program, she explained, can create still mosaics and run velocity calculations based on an object’s movement from one frame to the next. However, she noted that the use of this program allowed investigators to come to one, and only one, conclusion: “There is a red stain on the man’s shirt.”

Ironically, Wexler pointed out that another team of investigators were able to reach the same conclusion without manipulating the footage: “The man’s shirt has a red stain on it.” Regardless of their outcomes, however, she argued that the analysis of differently rendered versions of the same piece of evidence should cast doubt on conclusions made by either side – in this case and others.

The reason why image analysis programs are generally accepted, Wexler explained, is because they appear to be unbiased. This is because transparency and replicability have been the foundation for scientific inquiry since the 17th century. As scientists moved toward more and more detailed representations of the experiments they conducted and the data they produced, scientific truth became synonymous with what historian Steven Shapin calls “virtual witnessing.”

Since these software programs are proprietary, and thus protected by intellectual property laws, Wexler argued that they are anything but transparent. This is because technical analysts have, by limiting access to and knowledge about their procedures, prevented representatives of the public from being able to come to their own informed conclusions. As a result, she argued that this software blurs the line between public and private access to knowledge about particular cases, events, or individuals; and she called for a critical examination of its use in future proceedings.

Next, Wexler discussed how transitioning from analog to digital forms of data collection has changed images’ evidentiary nature. Since analog devices “created an image that would have been equivalent to what [an investigator] could have seen via the eye,” a lower court in the 1970s ruled that the collection of photographic evidence inside of the home aligned with the plain view doctrine. However, Wexler argued that this doctrine, which states that a law enforcement officer may conduct a search and seizure without a search warrant if evidence of criminal activity can be seen without entry or search, is complicated by digital technologies that can provide investigators with evidence beyond what the human eye can process.

Towards the end of her lecture, Wexler argued for a reexamination of the plain view precedent, arguing that it doesn’t necessarily authorize “the seizure of potentially incriminating data through photographic images.” First, she reiterated that images can be enlarged or enhanced in to reveal information that is not necessarily evident to the naked eye, which makes them more than observational in nature. Then, she emphasized that the increased use of body cameras in homes or privacy-protected spaces problematizes the issue because they may be “trying to incriminate events that haven’t happened” or that may only be revealed in retrospect.

In closing, Wexler paused to address how the collection of metadata, including GPS coordinates, may be used to not only authenticate data but also present a potential risk to anonymous sources. Unfortunately, she noted that the Supreme Court has largely neglected to address issues of privacy and authenticity in relation to digital photography and the Fourth Amendment, leaving them up to the lower courts to decide on a case by case basis.

This lecture was sponsored by the Maurer School of Law, the Center for Documentary Research and Practice, and the College Arts and Humanities Institute.

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