The Chinese-owned video app is a trove of digital intelligence that lawyers are attempting to mine and archive
ABOVE: International Criminal Court prosecutor Karim Khan stands next to a grave where remains of three bodies were found in the town of Bucha, outside Kyiv, Ukraine
BY:
Catherine Nicci
Legal Affairs Analyst / Reporter
PROJECT COUNSEL MEDIA
15 July 2022 (Washington, DC) – Over the last 15 years Project Counsel, led by our boss Gregory Bufithis, have been involved in many aspects of war crimes trials and human rights abuse cases. We have been involved in the staffing side (providing attorneys for special projects at various war crimes commissions) as well as direct involvement in the projects themselves, helping to collect, manage and organize evidence. Through our media division, we have also covered the trials themselves. We are involved in similar work in Ukraine but we’ll refrain from any detailed description right now.
Our boss is also working on an update of his TikTok monograph and while doing so came across a piece in today’s “Financial Times”, as well as a similar piece from “Politico Pro”. We have subscriptions to both and are often given license to republish their material, and we have such permission now. This is a mashup of those pieces, with a mix of our thoughts thrown in.
TikTok is resisting calls to preserve and hand over access to its content for war crime investigations, as lawyers and activists warn the Chinese-owned app is a major data challenge in prosecuting atrocities in Russia’s invasion of Ukraine.
The video app’s popularity with young Ukrainians and Russians posting footage of the war has made it a trove of digital intelligence that investigators are attempting to mine and archive as evidence of war crimes, crimes against humanity and illegal acts of violence in Ukraine.
TikTok, owned by Chinese tech giant ByteDance, has been criticised for being slow to respond to requests for product changes that allow the video app’s content to be archived and verified more easily, as well as better access to TikTok’s platform for members of civil society. There is a lot of suspicion of engaging with TikTok because of its origins (rightfully so). As you may have read (and Greg will detail in his updated monograph next week), there are huge concerns about the security of data on TikTok, as it never is fully clear where the interest and influence in the company is coming from. It is especially concerning that the Chinese government could directly have access to that data.
So far, China has refused to condemn Russia for invading Ukraine, and backed Moscow’s complaints about Nato expansion. TikTok has admitted it has censored content critical of China in the past, including references to Tiananmen Square, for instance. TikTok says it no longer blocks content based on political sensitivities. Or so it says. Any follow-up is very frustrating. TikTok’s processes are just not developed.
It comes as TikTok struggles to balance the swift removal of posts showing graphic violence or misleading content, with the preservation of potential evidence for human rights trials. TikTok is one of the newest in the game, and it’s one of the hardest platforms, from a data collection standpoint, because their sharing mechanisms are not as rich as, say, Twitter or Facebook. The way that TikTok stores data is much different, and where they store their data, in which countries, obviously is also a lot different. It is one of the biggest challenges – because you are dealing with a recalcitrant Chinese ownership. Every Chinese company is by extension an arm of the Chinese authoritarian government. I wish people who used TikTok would understand this.
Since early 2022, TikTok has met with human rights lawyers, activists and others involved in Ukraine war crime investigations. However, it has yet to introduce any changes to its process or the product itself. Criminal prosecutors are increasingly relying on social media posts from TikTok and others as a way to “bring the crime scene to the courtroom”. Today, any effective investigation anywhere in the world now really requires a very effective harnessing of social media. People recording killings or attacks or the consequences of attacks in real time, it can have absolutely fantastic probative value.
Experts say TikTok is particularly challenging to archive from, compared to its more mature competitors such as YouTube or Facebook, because it is prone to video and audio editing and remixing, has non-chronological newsfeeds, and when inappropriate content is removed by the company, nearly 90 per cent is deleted before anyone sees it. The consequences for legal investigations is that it is very difficult to verify the content. And how will investigators request information if they don’t know it ever existed?
The International Criminal Court has declined to confirm “officially” if it had officially asked TikTok to provide evidence from Ukraine but a representative said:
“When we know that there are investigations going on, like we did in Iraq, we could also petition the courts .to preserve that evidence. Clearly on all platforms, there is potential evidence. Over the life of the court, we have sought to have access to information from states and from corporations. And that will continue, but every company, like every state, will have its own approach to the importance of co-operation”.
TikTok said it regularly meets with organisations, government bodies and third-party experts to gather feedback, and is committed to co-operating with law enforcement while respecting the privacy of its users. Yes, lots of meetings. But the results? No comment.
I am reminded of a case that Doug Austin noted on his ediscoveryToday blog earlier this week wherein a U.S. Federal Court opined a defendant had to produce computers in China for inspection with respect to a litigation. As Doug noted, good luck with that, your honor. As Doug said. it’s one thing to get the judgment. It’s another to enforce the judgment. China doesn’t give a crap about U.S. law, or what U.S. companies are told they must do under U.S. law. Oh, China has “released” computers before – after they have been scraped clean. It is not so much the data on them. It’s all the surveillance software China puts on every computer in China. They certainly do not want to disclose any of that.
I suspect the same with any requests made to TikTok for war crimes evidence. China certainly does not want to set a precedent of any kind.
And as for collecting TikTok data … well there are a lot of scraping bots and technology for scraping and collecting public data from TikTok but we’ll leave that for another post. It is much more difficult than doing the same to Facebook, Google and Youtube because TikTok sharing mechanisms and data storage is much different that the other 3 I noted. But it can be done.
