Since I started collaborating with Ocean Mind in 2017, I have been very interested and active in the work of “fusion platforms.” I collaborated with Global Fishing Watch for a bit, then for the last 4 years, with Starboard.nz right from their inception. (There is also Skylight)
These Maritime Domain Activities (MDAs) data-receiving, processing, and presentation platforms have become pivotal in ensuring compliance. By utilising satellite imagery, AIS/VMS, artificial intelligence (AI), and its subset, machine learning (ML), and enhanced by computer vision technologies, these fusion platforms provide the capability to analyse large volumes of data to identify patterns and detect anomalies. Algorithms can examine present and historical data to predict potential compliance risks, enabling proactive risk management.
Analytics from the fusion platform can provide risk insights, improve report accuracy, and reduce time and resource requirements. This enables diverse stakeholders across multiple jurisdictions to decentralise work. the Sunflower 7 case and some of our cases in RMI prove their utility.
Yet, in reality, and perhaps thankfully, in the WCPO we never had to test their use in court cases. The fact is that in fisheries, you tend to settle out of court… ideally because the evidence is soo good and overwhelming that the vessel owner swallows the pill and settles to get back fishing, but as well that in the case of a foreign vessel, most flag states don’t want the case to be dragged into the Technical and Compliance Committee (TCC) of the WCPFC, and petition that the vessel gets into the IUU list and causes “noise and embarrassment”. Also, court procedures are generally complex, time-demanding, expensive, and sometimes politically demanding and taxing.
Yet, if ever… there would be a generalised challenge to the admissibility of ‘electronic evidence’, which is an umbrella term that includes ‘digital evidence’ (anything created or stored in a computer) and ‘analogue evidence’ (paper records, audiotapes, photographic film) subsets.
Additionally, electronic reporting (ER) and electronic monitoring (EM) – cameras on board are becoming increasingly common and ubiquitous in their roles in compliance now.
Although prevalent in society, digital or electronic evidence concepts are relatively new to legal discourse, while Internet or online evidence is even more recent. These terms solely represent the format of information rather than its admissibility as evidence. For example, in the USA they talk about ESI (Electronically Stored Information): any information created, stored, or utilised with digital technology. Examples include but are not limited to, word-processing files, email and text messages (including attachments), voicemail, information accessed via the Internet, including social networking sites, information stored on cell phones, and information stored on computers. At the other end, China’s law specifically addresses electronic evidence
In today's digital world, digital evidence is becoming more common and essential. Such things as emails, digital photos, ATM transaction logs, word processing, papers, instant message histories, files saved from accounting programs, spreadsheets, internet browser history databases, computer memory contents, backups, printouts, GPS (IAS/VMS) tracks, and digital audio or video files are all part of this.
Yet it depends on the rules of evidence in a specific country, which are set up to fit with that country's overall justice system. The rules of evidence decide how much evidence can be used and admitted by its proponent in a criminal or civil case. Because of this, those rules can be interpreted in many ways, making it difficult when involving different jurisdictions… as is the norm in fisheries.
Add to that the very high level of technology used to create, store, send, and use digital proof, which makes it harder to determine whether it can be used in court. Software, programming, and algorithms used in digital evidence are complicated to understand for most people, even software experts.
Data-generating devices don't work like human thoughts or get things done similarly; as such, the evidence may be spread out geographically and often kept on servers in different countries or submitted through networks connecting different jurisdictions with various rules and levels of transparency.
Thankfully, the Initial problems on the suitability of such electronic evidence and worries about the opposing party's ability to successfully cross-examine or otherwise challenge the evidence have mostly been replaced by acceptance and accommodation by most legal systems worldwide. In some systems, the evidence rules haven't changed much, but they've been applied differently to account for the different kinds of proof. At the same time, in other jurisdictions, separate Electronic Evidence Acts (or similar) have been passed to add new rules to the current evidence rules or to go along with them.
As part of a job for UNODC, I’m evaluating the MCS conundrums around MPAs in ABNJ; I came across an excellent study by Professor Andrew Norris (also for UNDOC) on how digital evidence related to maritime crime cases can be presented at courts, and I will be digesting it over a couple of forthcoming posts.
Of course, there are very straightforward cases involving one jurisdiction, newer legislation and a frankly brazen fisherman, as in this case: Fisherman caught on camera disposing of undeclared snapper. But unfortunatelly, these are the exceptions.