Digital traces that people leave behind can be useful evidence in criminal courts. However, in many jurisdictions, the legal provisions setting the rules for the use of evidence in criminal courts were formulated long before these digital technologies existed, and there seems to be an increasing discrepancy between legal frameworks and actual practices. This chapter investigates this disconnect by analyzing the relevant legal frameworks in the EU for processing data in criminal courts, and comparing and contrasting these with actual court practices. The relevant legal frameworks are criminal and data protection law. Data protection law is mostly harmonized throughout the EU, but since criminal law is mostly national law, this chapter focuses on criminal law in the Netherlands. We conclude that existing legal frameworks do not appear to obstruct the collection of data for evidence, but that regulation on collection in criminal law and regulation on processing and analysis in data protection law are not integrated. We also characterize as remarkable the almost complete absence of regulation of automated data analysis – in contrast with the many rules for data collection.

Historically, criminal offenses were proved through witness testimony, physical evidence, confessions, and rudimentary forensic techniques such as fingerprinting. But with the dawn of the digital era, prosecutors have increasingly relied on evidence gleaned from the modern arsenal of consumer technologies, such as cell phones or automated systems. Although much has been written about prosecutors’ use of such evidence to prove a defendant’s guilt, far less attention has been given to the challenges faced by the defense in accessing, presenting, or attacking forms of proof derived from sophisticated consumer technologies. This chapter aims to fill that gap, first by presenting a taxonomy of digital proof and then by isolating the critical characteristics of such evidence. The chapter suggests that this taxonomy can support efforts to formalize and standardize a defendant’s ability to marshal defense evidence for exculpatory and adversarial purposes as readily as the government does to inculpate.

In this chapter, Antonio Segura Serrano examines the potential for new and emerging technologies to be used to help settle international disputes. This chapter considers how digital evidence can be gathered and evaluated by dispute settlement bodies. This chapter also analyses what role online dispute settlement bodies can play in the settlement of international disputes. In doing so, it assesses the practice of online dispute resolution systems already in place for online transactions among individuals (both private and public systems) in order to identify any features that can be transposed to inter-State dispute settlement. This chapter concludes by explaining that these systems, in particular their use of algorithms and artificial Intelligence, offer some important lessons for State-to-State dispute settlement.

The efforts of Syrian Archive and other gathering sites of digital evidence point to something powerful in the way their crimes are being exposed and given public attention. These archives have a power of persuasion with many of the same vindicating and truth-affirming qualities as truth and reconciliation commissions. But the transitional justice that occurs through digital witnessing and open source investigation is unlike that of any previous model. (1) Efforts toward post-conflict justice and nation building can occur while the conflict is ongoing; (2) The form taken by human rights activism has shifted from a focus on victims and the historical context of violence to the technical means of gathering and presenting digital evidence; and (3) At the same time, digital witnessing is able to provide powerful evidence that the crimes victims are narrating actually took place. The close focus of digital fact finding on crimes and their victims makes possible a new kind of witnessing, one that is simultaneously focused on both the instrumental causes and experiences of suffering.