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Prof. Ronald J. Rychlak Prof. Joanne Irene Gabrynowicz Mr. Rick C. Crowsey

Researching, Identifying and Establishing Standard Procedures to Certify Digital Data for Use in Court Procedures 33 Journal of Space Law 195 (2007). Prof. Ronald J. Rychlak Prof. Joanne Irene Gabrynowicz Mr. Rick C. Crowsey. The Project. Making this understandable to lawyers, judges

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Prof. Ronald J. Rychlak Prof. Joanne Irene Gabrynowicz Mr. Rick C. Crowsey

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  1. Researching, Identifying and Establishing Standard Procedures to Certify Digital Data for Use in Court Procedures33 Journal of Space Law 195 (2007) Prof. Ronald J. Rychlak Prof. Joanne Irene Gabrynowicz Mr. Rick C. Crowsey

  2. The Project

  3. Making this understandable to lawyers, judges and other legal professionals litigation or dispute resolution down linked data from remote sensing satellite and GPS satellite Energy from the Sun or from the sensor platform (satellite or aircraft) reflected energy value added resellers retail user absorbed energy expert/consultant Energy from the Sun or from the sensor platform (satellite or aircraft) EROS Archive ground station certified digital product absorbed energy

  4. The Problem EDC had established, standard procedures that provided attorneys and other legal professionals with analog photographs for use in various legal proceedings, including as evidence in court. The procedures met recognized rules of legal procedure and evidence. When technology changed and imagery became digital, there were no corresponding procedures for digital imagery.

  5. The Project • Established current law baseline regarding electronic evidence • Reviewed recent rulings, current law and precedent • Scientific evidence • Demonstrative evidence • Federal Rules of Evidence • Leading cases: Daubertand Frye • Considered similarities to • DNA • Photographs • Electronic Data Discovery • dynamic subject directly applicable to imagery captured, stored and transferred in electronic form

  6. The Project • Established EROS Data Center baseline • visited EDC • Reviewed and documented current processes and procedures used to • fill analog data/imagery requests for court use • turn analog data/imagery, including scanning into digital data • Met with EDC staff to identify procedures and policies • Recommended policy, procedures, standards

  7. The Project • Draft paper • documented team’s findings and recommendations • reviewed by Federal prosecutor and Federal Judges • Final to be published in Journal of Space Law • Wrap – Up Briefing

  8. The Team • Principle Investigator • Prof. Joanne Irene Gabrynowicz, Professor, remote sensing and space law, Univ. of MS, School of Law • Director, National Remote Sensing and Space Law Center • Editor-in-Chief, Journal of Space Law • Researcher • Prof. Ronald J. Rychlak, MDLA Professor of Law, Associate Dean for Academic Affairs, Univ. of MS, School of Law • Professor, law of evidence • Author, Real and Demonstrative Evidence, LexisNexis 2nd ed. • Spatial Information Litigation Expert • Mr. Rick Crowsey • Rick C. Crowsey, President, Crowsey Incorporated • Spatial information, OR/systems thinking and legal technology advisor • Student researcher • Ms. Ashley Johnson, third year law student

  9. The Visit:Learningand Understanding the Certification Process USGS customers may request product certification services performed per USGS Manual Chap. 301.3 “Certification of USGS Reproductions”, derived from DoI Manual Part 310 Chap. 10 “Certification of Documents”. USGS will certify that the archive source used to make the product is an official record of the government that is in the legal custody of the USGS and that the output product is an authentic reproduction of the archived source.

  10. The Visit:Learning and Understandingthe Expertise “In support of the recent shift to digitally produced products, a core of highly trained legacy employees within the Archive and Data Resources Department successfully transitioned their skills and experiences to creating digital products using photogrammatic quality precision scanners.”

  11. The Visit: Learning and Understandingthe Data Sources and Processes 1.EDC receives and prepares customer’s order for processing. 2. Film source retrieved from archive, scanned on photogrammetrically quality scanner. 3. Scanned image output to digital media labeled with USGS visual ID, order number and date generated. Image printed on a graphic arts quality printer. 4. USGS Manual Chap. 301.3 certification process is performed. 5. Scanned output file on digital media and hardcopy product sent to customer.

  12. Project Highlights and Results • EDC already had the basics institutionalized • Challenges • Separating out what was done for photos to what was needed for digital • Having the engineers and technologists see the process and results from a lawyer’s perspective and why they needed to understand it • Having the lawyers see the process and results of a technical perspective • Getting out, and staying out, “of the weeds” to produce a high level certification product

  13. The Legal Landscape:The Law of Evidence

  14. The Legal Landscape:The Law of Evidence • Visual (Real and Demonstrative) evidence is of significant importance in modern litigation • EDC needs to be certain that its procedures permit images to be admitted as evidence

  15. Evidence Must be Relevantand Material FRE 401. Definition of “Relevant Evidence” “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

  16. In other words… • Exhibit must accurately portray the scene • A proper foundation must be established

  17. Authentication and Identification Federal Rules of Evidence 901 • Foundation is required before exhibits will be admitted into evidence • This requires evidence sufficient to support a finding that the matter in question is what the proponent claims

  18. Authentication and Identification Example: Rule 901(b)(9) • Evidence describing a process or system used to produce the result, and • Showing that the process or system produced an accurate result • Judicial notice can come into play (video camera vs. polygraph)

  19. Foundation forPhoto Exhibits • Authentication can be accomplished by witness testimony that the photograph shows what it purports to show • That won’t work for us…….

  20. Foundation forPhoto Exhibits • An alternative to authentication is the “silent witness” theory • This foundation relies on an understanding of the process used to capture, store, and produce the image • Surveillance cameras rely on this foundation

  21. Foundation for DigitalPhoto Exhibits • Identify the contents of the image • Show that the proper and accepted digital imagery techniques were used (reliability and capability of computer hardware and software) • Detail a “chain of custody” explaining any editing

  22. Requirements for Businessor Government Records Exception • Writing was made in regular course of business; and • Writing was made at or near time of act, condition or event; and • Custodian of record or other qualified witness testifies to the writing’s identity and mode of preparation; and • Sources of information and method and time of preparation, were such as to indicate the writing’s trustworthiness.

  23. Uniform PhotographicCopies of Business and Public Records as Evidence Act • Reproduction made in regular course of business • Reproductions by “any technique that accurately reproduces the originals” • Reproductions are admissible in evidence/administrative proceedings

  24. Court Decisions:Computer Records Computer business records are admissible if • Kept pursuant to a routine procedure designed to assure their accuracy • Created for motives that tend to assure accuracy • Not themselves mere accumulation of hearsay • United States v. Sanders, 749 F.2d 195

  25. USGS Previous Procedure • Data was transmitted from satellite to USGS which then provided print-out copies to customers • Witnesses were generally not available to authenticate the image, so most courts relied on the USGS certification that was affixed to the image

  26. USGS Certification Policy USGS Manual Chapter 301.3 “Certification of USGS Reproductions” • Department Manual Part 310 Chapter 10 “Certification of Documents” • Provides procedures for certifying and/or affixing an official seal to copies of records for the purpose of attesting to the source or authenticity of the reproduction • Applies to the processing of all requests for certification of copies of any official books, records, papers, documents, maps, photographs, plats, or diagrams in USGS custody

  27. What is theUSGS Certifying? • Source used to make the certified product is an official record of the government and is in legal custody of the USGS. • (With the old system), the hardcopy output print is an authentic reproduction, a true copy, of the archived source.

  28. The USGS Only Addresses • Questions related to processes used to make the product and the archived source materials. • Technical questions that a customer may ask concerning the technologies or “inner workings” of the scanners, printer or software used to create the USGS certified product are referred to manufacturers.

  29. Certification Process • In general terms, the descriptive statement simply confirmed that printout was authentic and provided ancillary information such as product description, acquisition data, project name, roll and frame number, and enlargement factor • With digital data, there is no printout to certify

  30. value added resellers retail user How USGS Spatial Data is Archived and Certified for Use in Court litigation or dispute resolution down linked data from remote sensing satellite and GPS satellite expert/consultant Energy from the Sun or from the sensor platform (satellite or aircraft) reflected energy EROS Archive ground station certified digital product absorbed energy

  31. How USGS Spatial Data is Archived and Certified for Use in Court Old Photo Procedure litigation or other end use down linked data from remote sensing satellite and GPS satellite EROS Archive ground station certified photo

  32. How USGS Spatial Data is Archived and Certified for Use in Court New Digital Procedure litigation or other end use down linked data from remote sensing satellite and GPS satellite expert/consultant EROS Archive ground station certified data

  33. How USGS Spatial Data is Archived and Certified for Use in Court Crucial Differences litigation or other end use EROS Archive expert/consultant certified data

  34. USGS Proposed Procedurefor Digital Photo Exhibits Foundation will be established in the same manner as was previously used in addition to • Adequately preserving the image for future authentication • Assigning a product number to each customer order • And compiling the image and the product number on CD/DVD (or other format) prior to customer distribution

  35. USGS Certified Product

  36. Responses from Judges U.S. District Court Judge MS S.Ct. Justice U.S. Circuit Court Judge All have trial and appellate experience

  37. FRE 403. Exclusion of Relevant Evidence Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

  38. Do you have those days where you don’t give a damn about the rules of evidence?

  39. Putting it Together andGoing Forward

  40. From NOAA Post Storm Data Acquisition Aerial Wind Analysis and Damage Assessment Hurricane Katrina, October 31, 2005

  41. USGS Sustained Wind (mph) From USGS Hurricane Katrina Analysis (http://gisdata.usgs.net/website/Katrina/viewer.ph)

  42. Biloxi Before & After Katrina 61 cm spatial resolution From Quickbird, DigitalGlobe, 4/12/2005 & 8/31/2005 ~61cm spatial resolution (http://digitalglobe.com/images/katrina/biloxi_coast_08_31_2005.jpg)

  43. Technology andLooking Forward • Admissibility • is this a true and fair representation of the scene (among other requirements)? • Chain of Custody or Archive History File (AHF ) • Attempt at being technology neutral • Avoids rewrites every time a new processor, sensor, compression algorithm comes out • Addresses issues important to legal professionals rather than focus on electromagnetic spectrum (or other specific technology)

  44. Technologyand Looking Forward • “Fiddling” • Compression/decompression; geometric corrections; radiometric corrections • Repeatable • Reproducible • Transparent • Questions about the reproduction process • The same approach for dealing with “fiddling” works for this • That is, someone else being able to order the same data I ordered and receive an identical data delivery

  45. Sources • Government data receives preferential treatment • but benefits from Archive History File • Using Commercial Data • Archive History File: contains a complete recipe with enough detail to enable a capable firm to exactly duplicate the offered document • Tools (ESRI ArcView 3.1a, …) • Data (soft and hardcopy sources) • Processes (digitizing hardcopy, geocoding, etc.) History Archive File Food Analogy Tools Ingredients (Data) Recipe (Processes – what’s done with tools to ingredients)

  46. Potential “Gotcha’s”The Importance of Repeatable, Verifiable Archived Data • Deception • Data source veracity • Language (false color image) • True & Accurate Representation • Scale • Projection • Colors • Symbology • Aggregation • Annotation

  47. Deception • Inadvertent misrepresentation • By attorney or expert • Purposeful misrepresentation

  48. Questions?Comments? Researching, Identifying and Establishing Standard Procedures to Certify Digital Data for Use in Court Procedures

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