First workshop: Guidelines for the ethical use of digital archives of testimonies from witnesses of mass violence
Concept Note
As the number and complexity of digital archives that collect and preserve testimonies from witnesses of mass violence increases, so do the capabilities of digital technologies. These simultaneous developments give rise to many questions for archivists, researchers, policy makers, and curators. Victims of mass violence are particularly vulnerable to the uncontrolled dissemination of their testimonies. Protecting these archives from information misuse and cybercrime is extremely important.
The EU GDPR[1] constitutes the most developed framework for the protection of personal data. Article 89 of the GDPR directly addresses data collected for archival purposes: Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes. While the European Data Protection Supervisor (EDPS) and the European Data Protection Coordinator (EDPB) have issued several opinions and guidance helping in the interpretation of article 89, these have mostly focused on statistical data or data for scientific research[2]. To our knowledge, no official expert guidance exists for the application of GDPR article 89 in the case of testimonial archives. The only exception is the European Archives Group (EAG)’s Guidelines on the implementation of the General Data Protection Regulation[3] which provide helpful advice for public and private institutions that hold archives.
Since the publication of the EAG guidelines in 2018 several issues remain open or have become significantly more prominent.
First, limited clarity on the differentiation of two of the potential purposes of collections is problematic because the purpose of historical research and the purpose of archiving are subject to different legal regimes[4]. In particular, the preferential regime reserved to research activities under the GDPR may, in the case of vulnerable populations such as victims of mass violence, endanger the fundamental rights of witnesses. With our work we hope to establish a suitable, and ideally standardized, interpretation of what constitutes adequate safeguards for the rights and freedoms of data subjects, called for in GDPR article 89, in the case of mass violence testimonial archives.
Second, the case of deceased persons. While the GDPR protects the rights of living natural persons, many mass violence testimonial archives include data of deceased persons whose rights may or may not be regulated at the national level. Once again, given the specific characteristics of the information contained in mass violence testimonial archives, the misuse of the data of a deceased person may endanger other people and infringe on the human dignity of the deceased. In the face of a growing digital afterlife industry, several researchers have explored issues related to the use of the data of deceased people[5], however the specific case of digital testimonial archives is, as far as we know, unexplored. A second objective is therefore to establish a suitable, and ideally standardized, set of safeguards for the rights and freedoms of data subjects in the specific case of testimonials of deceased persons.
A third issue is related to the fast development of technology which may result in the use of testimonials in a way that was not conceivable at the time of collection when consent was possibly delivered. Imagine, for example, the development of an interactive avatar, trained using archival data, capable of mimicking the main characteristics of a witness. The question of whether this particular use of the data would be covered by the original consent (or declared lawful purpose) is directly related to that of the protection of the rights and freedoms of data subjects, we are therefore particularly interested in defining a meaningful interpretation of what constitutes ethical use of testimonies collected and processed under any lawful purpose.
Fourth, video testimonies may have been collected by persons who consent to the use of a digital recording they have made, however, the people appearing in the recording may not be able to provide free consent (e.g., they are the victims of violence represented in the video). While the images may be lawfully included, e.g., under the provision of article 6(e), we would like to explore the question of how to satisfy archival needs while respecting the rights and dignity of data subjects who are unable to provide or deny consent.
Fifth, in the case of erasures, it is important to maintain the integrity of archives. While GDPR’s Article 17 Right to erasure (Right to be forgotten) may not apply “to the extent that processing is necessary […] for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes […]” 17(3d), adequate safeguards for the rights and freedoms of data subjects must be ensured. Providing guidelines to balance the tradeoffs between archive integrity and the protection of data subjects while observing legal and ethical requirements is an additional objective of our research. It should be noted that malign interventions (cyberthreats or cyberattacks), may also impact an archive’s integrity but we consider this aspect out of the scope of our research and assume that appropriate cybersecurity measures are in place.
Finally, we are interested in exploring how the value of video testimonies as credible accounts of “reality” is changing in the face of the increasing ease with which images, sounds, and videos can be manipulated by human or artificial actors. This manipulation can range from subtle enhancements to outright fabrication, eroding trust in the authenticity of visual representations. The emergence of deepfake technology allows for the creation of highly convincing fake videos or images, often using artificial intelligence. This blurring of reality and fiction contributes to skepticism about the truthfulness of visual content as does the fact that social media platforms have long been showcasing curated or filtered images, presenting a polished version of reality carefully chosen or edited to convey a particular narrative. The widespread use of photo editing applications on smartphones allows individuals to experience how easily one can modify their own images before sharing them online. This heightened awareness, rightly contributes to a general sense of skepticism about the truthfulness of images. As individuals become more attuned to the idea that reality is subjective and can be shaped by various factors, including media and technology, they may naturally question the authenticity of images and their ability to faithfully represent the complexities of reality.
At the same time, as the perceived truth value of video testimonies decreases, vulnerability to denial increases. We ask how to establish an archive that is recognized as being true to its declared objectives? While much research has explored the issues connected to what has been called fake news, post-truth, altered reality, etc., a specific focus on testimonial archives may provide an interesting lens of observation for these phenomena.
During the workshop, in addition to discussing the themes identified above, other topics relevant to the design of standards for the ethical use of digital archives of testimonies from victims of mass violence, may emerge.
For this first workshop, we restrict our research to the following:
- We are interested in information that has already been collected (we do not look at issues related to collection itself)
- We would like to restrict our research to formal collections of testimonies (excluding, for example, individual testimonies that appear on social networks)
- We assume that appropriate cybersecurity measures are in place to protect the archives from malign tampering.
[1] General Data Protection Regulation https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016R0679
[2] Summary of the Opinion of the European Data Protection Supervisor on safeguards and derogations under Article 89 GDPR in the context of a proposal for a Regulation on integrated harm statistics – 2018 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018XX0116(01) ; Legal study on the appropriate safeguards under Article 89(1) GDPR for the processing of personal data for scientific research – 2019 https://edpb.europa.eu/our-work-tools/our-documents/legal-study-external-provider/legal-study-appropriate-safeguards-under_en ; A Preliminary Opinion on data protection and scientific research – 2020 https://edps.europa.eu/sites/edp/files/publication/20-01-06_opinion_research_en.pdf ; Additionally, specific opinions have been issued on European statistics https://edps.europa.eu/system/files/2023-09/2023-0753_d2563_opinion_en.pdf
[3] https://commission.europa.eu/system/files/2018-10/eag_draft_guidelines_1_11_0.pdf
[4] Ducato, Rossana. “Data Protection, Scientific Research, and the Role of Information.” Computer Law & Security Review 37 (July 1, 2020): 105412.
[5] Bruneault, Frédérick, Andréane Sabourin Laflamme, and Bart F.W. Wernaart. “12. The Privacy of the Dead.” In Applied Human Rights, 185–204. Wageningen Academic Publishers, 2023.
Harbinja, Edina, Lilian Edwards, and Marisa McVey. “Governing Ghostbots.” Computer Law & Security Review 48 (April 1, 2023): 105791.
Sandvik, Kristin Bergtora. “Digital Dead Body Management (DDBM): Time to Think It Through.” Journal of Human Rights Practice 12, no. 2 (July 1, 2020): 428–43.
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