UC Berkeley

In emergent fields of practice, there is often an ‘ethics lag’ — a period of significant innovation during which the focus is on what can be accomplished more than on the safeguards that should be put in place to protect the public from the unanticipated consequences of that innovation. This is true of the emergent field of digital open-source investigations conducted for international criminal justice purposes, in which researchers and analysts comb the Internet for information relevant to their research. One sub-field where the ethics lag is particularly of concern is digital investigations of conflict-related sexual and gender-based violence (CRSV), especially with regards to whether and when investigators need consent from social media posters, survivors, bystanders and others to use information discovered in online spaces. This article explores options for centring and promoting victim safety and dignity by clarifying ethical issues that investigators should consider before using open-source information to support international investigations and prosecutions of CRSV. After identifying where the relevant law leaves gaps in guidance, the authors discuss a series of considerations that may help investigators ethically handle such sensitive data. Ultimately, the authors underscore the importance of securing consent from survivors when engaging in digital open-source investigations into sexual violence. What arguably varies is who should seek that consent, when, and how.