The Satellites Testimony

Satellite Data and Applications for

Law Enforcement Purpose
Jean-Franois Mayence, LLM
Legal Advisor
2013

Costa Rica v. Nicaragua

A United Nations report released Monday seems to support Costa Rica's
case in a border dispute with neighboring Nicaragua. Opening statements
start Tuesday at the International Court of Justice in the Netherlands.
The report released by UNITAR-UNOSAT, a U.N. environmental
assessment body, compares satellite images of the Isla Calero during a time
frame from 1979 to 2010. Titled Morphological and Environmental
Change Assessment: San Juan River Area (including Isla Portillos and
Calero), Costa Rica, the report details the recent environmental alteration
to the region, while also alluding to potential effects of the river dredging.
There is apparently an area of active land removal on a (bend) of the San Juan
River approximately 400m to the south of the newly created channel, the report
read. If this (land) removal continues, it could redirect the flow of San Juan
approximately 175m to the west, likely increasing river flow velocity downstream;
such an increase in water velocity could also have the effect of accelerating erosion
along the newly created river channel to the north.
TicoTimes.net January 2011

TIME Dec. 3, 2011

George Clooneys
Satellites Build a Case
against an Alleged War
Criminal
The International Criminal Court is compiling evidence
of possible recent war crimes in southern Sudan,
allegedly directed by Sudanese Defense Minister
Abdelrahim Mohamed Hussein, the same man whom a
prosecutor at the court wants to apprehend for alleged
crimes eight years ago in Darfur. () A significant
portion of this new investigation is based on data from
the Satellite Sentinel Project, a network of private spy
satellites and analysts organized by George Clooney in
partnership with John Prendergast's Enough Project.
The satellites have been snapping pictures of northern
Sudan since December of last year. "We are the
antigenocide paparazzi," Clooney told TIME then.

The Satellite at the Service of the Law

Telecommunications
Positioning
Observation
Anytime
Anywhere
Ensure surveillance
Provide evidence

Observation of the Earth by Satellites (1)

General Principles :
Freedom of Use of Outer Space (1967 OST)
Compliance with International Law +
International Responsibility (1967 OST)
UNGA Res. 1803 (XVII) (December 1962) on
Permanent Sovereignty over National Natural
Resources
UNGA Res. 51/122 (December 1996) on Space
Benefits

Observation of the Earth by Satellites (2)

Remote Sensing Principles :
UNGA Res. 41/65 (December 1986)
full & permanent sovereignty over wealth and
natural resources
non detrimental to legitimate rights & interests of
sensed State
right of access to primary data & analysed
information

The Satellite Protecting the Citizens Rights

right to security / safety (Art. 5.1 ECHR)
protection of personnes, goods, infrastructure

right to privacy (Art. 8.1 ECHR)

non-intrusion in private property
non-interference with private life

freedom of expression / right to information

(Art. 10.1 ECHR)
regardless of frontiers
may be restricted wrt/ security and individual
rights

Law Enforcement in Non-Judicial Procedures

Surveillance & Prevention
Environment Law
Contractual Law
(Employment, Sales & Credit, Transport)

Monitoring of Activities
Disarmament / Arms Control

Safety & Health + Global Management

Epidemiology / Insurance Law

Casual Detection of Criminal Behaviours

Judicial Procedure

Surveillance & Prevention (1)

Environment Law:
Song San Ship (Singapore, 1996)
detection of unlawful oil draining by ERS satellite
but no legal evidence provided by satellite data
Ships Collision (Singapore, 1997)
detection and monitoring of residual oil spills

Employment Law:
Surveillance of Worker by GNSS
France: registration by CNIL
USA: case law (People vs Weaver, NY, June 2008 )

Croydon Advertiser
UK, November 1, 2008

Satellite evidence used in fight

against Croydon traffic wardens
A courier is fighting Croydon Council over a 120
fine for a parking ticket he says he never
received.
William French received a letter in August
demanding 120 for not paying a 60 ticket
within a fortnight despite him arguing he was
never given a ticket.
Mr French, 43, says his satellite tracker, which
follows his route, shows he was moving at the
time he was given a ticket in Southbridge
Road, South Croydon, and says the council are
refusing to show him proof of his parking
violation.
He said: "My tracker shows I was driving when
they handed this ticket out, I think they must
have caught me with a camera.

Surveillance & Prevention (2)

Disarmament & Arms Control
1993 Chemical Weapons Convention
1997 Mine-Ban Treaty
CTBT/CTBO (de facto application)
surveillance entrusted to organizations
(IGO or NGO) with reference to the use of
satellite imagery for monitoring purpose

Surveillance & Prevention (3)

Tele-Epidemiology
mapping of mass diseases : data intelligence to
associate health risk to individuals from an
identified group
privacy / discrimination issues
US: Health Insurance Privacy Protection and
Accountability Act regulating the processing and
transfer of digital data concerning personal
health condition
Concepts : METADATA and PERSONAL DATA

Law Enforcement in Judicial Procedures

Purposes:
providing technical support for dispute
settlement
identifying criminal behaviour and
providing legal evidence in order to allow
prosecution
reliability
admissibility (incl. wrt/ privacy)

Admissibility as Evidence
Issues identified by US courts with regard to
the admissibility of the data as evidence:
- reliability and relevance of the data (criteria > US
Constitution, FRE, jurisprudence i.e. Frye 1923 and Daubert
1993)

- access to data by the parties (ex.: Hurricane Katrina

victims claims)

- non-violation of fundamental rights (Ciraolo 1986,

Kyllo 2001)

certification?

Certification of Satellite Data

Dispute Settlement
Public International Law
ICJ (1986) Burkina Faso v. Republic of Mali
ICJ (1999) Namibia v. Botswana
borderline limitation dispute: satellite data allows
the drawing of the exact line of separation based
on natural configuration
Amnesty Int. report on Porta Farm events
(Zimbabwe, 2002)
Peoples Tribunal on Sri Lanka (Dublin, Irland, 2010)
cf. AAAS certfication requested by NGOs
Domestic Law
Use of satellite data for establishing the damage
caused by natural disaster (i.e. Hurricane Katrina)

Criminal Law Prosecution (1)

California vs Ciraolo (1986)
aerial optical pictures of a private property
revealing intensive culture of cannabis
Court of Appeal (California): reasonable
expectation of privacy : evidence to be
rejected without a warrant
US Supreme Court: no reasonable
expectation of privacy

Criminal Law Prosecution (2)

Kyllo vs USA (2001)
thermal sensor revealing culture of cannabis
in a private house
US Supreme Court considers the
observation as a search under the IVth
Amendment and, therefore, requires a
warrant

EU Law (1)
Directive 95/46/EC on the protection of
individuals with regard to the processing
of personal data and on the free
movement of such data
2012: EC proposals for EU Regulation on
the protection of personal data and EU
Directive on the use of personal data for
criminal prosecution purpose

EU Law (2)
Directive INSPIRE 2007/2/CE
constitution of, collection of,
compilation of, access to, geospatial
data by EU Member States institutions
network of data management
exceptions (Art. 13): governmental /
judicial / economic confidentiality,
privacy

Belgian Law
Protection of Privacy + Protection of Sensitive
Infrastructure :
definition of personal data: any data concerning an
identified or identifiable person wrt/ specific elements
(registration number, physical / social / cultural description)
(Law 08/12/1992)
EO data: resolution < 50 cm = identifiable data
(> CPVP/CBPL)
draft legislation on the publication of personal data or
sensitive data (military sites, nuclear power plant, critical
infrastructures)

Belgian Criminal Procedure Code provides legal

framework for special investigation methods,
including observation

Conclusion
In order to add value to satellite data & applications
for law enforcement purpose, and to enhance
their use by authorities, we need to:
(1) delimit privacy (Can a casual observation be used
for LEP? What is the limit of the resolution for
privacy protection?)
(2) ensure confidence in and reliability of the data
(through official certification)
(3) better communicate about the technical
possibilities of satellite data & applications

The Price of Freedom is Vigilance.

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Freedom

Security

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