28 December 2010

eyes in the skies

While reading about the Outdoor Recreation Party and LDP I've serendipitously encountered a recent UK Economic &Social Research Council report by Ray Purdy on 'Smart Enforcement in Environmental Legal Systems: A Socio-Legal Analysis of Regulatory Satellite Monitoring in Australia' [PDF].

The lucid 225 page report -
examines whether modern satellite technologies could provide a rigorous, legally reliable, and cost effective tool in inspection and compliance regimes in environmental regulatory systems. It considers these issues in the context of relevant experience and expertise in Australia, which is the only sustained comparative example where satellites have been used to monitor an environmental law. Satellite monitoring is used to monitor compliance with vegetation clearing legislation in Australia. This report seeks to demonstrate lessons learnt from this cutting-edge practice in Australia and to identify how best to build on this experience if satellite monitoring is to be used in new regulatory strategies.
Purdy comments that -
Satellite monitoring of environmental laws is still more theoretical than applied, its use having largely been limited to detecting fraud in the agricultural sector. Understanding amongst European Governments of the potential of using satellites in regulatory strategies is insufficient at the current time, because the development of satellites has been almost exclusively technology led to date. There has been little communication between the space sector and those in the legal field as to the immense improvements that have been made in what satellites can see, and consequently development of applications for use in an enforcement context has been stifled. The lack of empirical evidence on operational experiences and costs available to regulatory bodies has meant that there has been a poor level of the use of satellite technologies in regulatory strategies, relative to its full potential.
He goes on to comment that -
use of satellite technologies by Australian regulators to combat illegal vegetation clearance is the first international example where satellites have been systematically used to monitor compliance with a specific environmental law. Australian regulators use satellite imagery to check legislative compliance, by analysing it to determine whether and when vegetation was cleared. They look for relative changes in vegetation response between two satellite images of the same location with different capture dates. Comparative images can show that the vegetation clearing took place between the first image date and the second. If the satellite image shows that an offence might have occurred, regulators can then take a decision as to whether to direct resources to further investigations.

Australia has been using satellite data in a regulatory context for about ten years and there have been a significant number of cases where imagery has been used in the courts. Many lessons can be learnt from Australia which could be useful to regulatory bodies in Europe. This is particularly so because Australia has a federal legal system, so each State has a different experience of designing and implementing satellite monitoring programmes for vegetation clearance. The experiences of each of three States examined in this report throws further light on the operational effectiveness and cost of using satellite technologies in a regulatory context.

State Governments in Australia acquire imagery from medium-resolution satellites, as it is relatively cheap and has good geographical coverage. Whilst this gives them a state-wide picture of land-use change, there can be difficulties in using such data in court. Experience has shown that medium and low-resolution satellite imagery of this type can be confusing to non-technical people, such as judges, as it can look blurry. In two States, if monitoring data from the medium-resolution satellite detects a potential offence, the Government might then purchase high-resolution imagery. It is particularly purchased if it is likely that a prosecution will proceed, as high-resolution imagery is more photograph-like in image quality, and can be more easily understood by laypeople in court. One Australian State has invested substantially more money in their monitoring programme and purchases state-wide high-resolution imagery on an annual basis.

Ad-hoc acquisition of high-resolution imagery can seem expensive, costing States approximately (AUS) $2000 for each image. However, as only in the region of five to ten cases might go to court each year, this could represent a net annual spend of approximately (AUS) $10,000 to 20,000. New South Wales has a state-wide programme of monitoring using high-resolution SPOT imagery, costing in the region of (AUS) $2.5 million a year. Whilst numbers of court cases remain at current levels, buying high-resolution imagery as and when it is needed to corroborate evidence from medium-resolution satellites is therefore relatively costeffective. Buying the satellite data is not the only significant expense of a satellite monitoring programme. There are also costs associated with the recruitment and training of analysts, as well as purchasing computer hardware and data storage facilities. ...

There have been different approaches taken by States as to whether to include specific provisions relating to the use of satellite imagery in legislation. Two States decided at the outset that this was not necessary and that the general investigative powers of regulators under existing legislation should suffice. Queensland adopted a different approach, by providing in their legislation that any technological instrument used under the act, in the absence of evidence to the contrary, is deemed to be accurate and precise. It is also deemed to have been used by an appropriately qualified person and the report that this person has prepared, based on the 'remotely sensed imagery', is deemed to be correct in the absence of evidence to the contrary. These provisions were copied from breathalyser legislation and effectively reverse the burden of proof, making it harder for the defendant to cast doubt on the evidence by questioning the correct functioning of the satellite. This legislative support came about not because of losing any court cases, but because this State Government was trying to save time-consuming work in proving that the imagery was credible evidence in court. The other side must advise, within a notice period, which specific areas of the evidence they will challenge. This is intended to give the Government enough time to prepare and respond to any challenges before a court hearing.

Satellite monitoring can be a very pro-active method of enforcement. Before satellite monitoring, Governments mainly relied on detecting offences through tip-offs. Satellite monitoring made them aware of a lot more possible offences, meaning that they had to substantially increase numbers of staff if they wanted to conduct inspections and make compliance decisions. Satellite monitoring might not, therefore, always solve resource difficulties within Government, and in fact, in the short-term, it might increase financial pressure. Governments wishing to introduce a satellite monitoring programme are required to have a far more strategic regulatory approach than those with conventional land-based approaches. Lawyers, scientific officers and investigators will all be required to work together as a team. Experience in Australia shows that there has not always been a good triangle of understanding and communication between these three groups. This has directly resulted in some prosecutions collapsing in court. It is, therefore, not just evidence that is an issue when satellite data is used in court, staffing and regulatory structures can sometimes be overlooked, even though these can be equally as important. Over time, States in Australia have been required to implement new strategies for encouraging liaison and interdisciplinary training between these three groups.

Australia has seen a significant number of cases where satellite imagery has been used as evidence in courts. There have been few challenges as to whether imagery should be excluded as unreliable evidence to date. However, the use of imagery in the Australian courts has been what can be best described as a 'bumpy ride' for Governments. After some early successful prosecutions, defence lawyers started to question the potential for date changing of the imagery, its quality and accuracy, the credentials of Government experts, and even whether the satellite was working correctly. Attacks such as these caught Governments by surprise. All three States have had phases where they have had problems with failed prosecutions, either for the above reasons or because of other procedural technicalities, causing them to pause enforcement programmes and reflect on their practices and procedures. A key cause of problems appears to be the initial lack of legal input in the development of monitoring programmes. Legal and technical disciplines need to work closely together, hand in hand, and not get out of sync with one another.

The judiciary in Australia appears to have a general openness towards new technologies and satellite images have been treated similarly to other forms of technological evidence. Judges appeared to be strongly persuaded by the facts and context of things visually. They were impressed that satellite imagery allowed them to view what the issue in dispute looked like at the time of the offence, allowing them to see for themselves what happened, rather than having to rely on recollections of witnesses as to what they saw, said, or heard. However, there was also recognition amongst the judiciary that as satellite imagery was digital data, there could be issues as to whether it could have been processed, or altered, in either a deliberately misleading or accidental manner, in a way that could affect its probity.

It is increasingly recognised by Governments in Australia that there are systems and protocols that can be put in place to enable satellite data to be a more effective form of legal evidence. For example, there is now greater emphasis on showing the chain of custody and events from the raw data, through processing, to the product that is used in court. Some States collect affidavits from external image suppliers to demonstrate authenticity. However, at the current time there are no national standards in Australia, which deal either directly or indirectly with using satellite imagery as evidence. Australia is not alone in not having developed standards in this area. There are no developed national or international rules or standards in place as to the specific use of satellite imagery as legal evidence. Such standards could give lawyers and judges greater confidence in the use of the technology and can also inform technical experts as to how to best manage digital data.