Legal Challenges and Market Rewards to the Use and Acceptance of Remote Sensing and Digital Information as Evidence
Markowitz, Kenneth J., Duke Environmental Law & Policy Forum
We need to see the future more clearly if we are to stay within ecosystem limits. Our new ability to uncover facts brings with it new opportunities and challenges for evidence, particularly in the area of environmental compliance. Satellites and other remote sensing technologies are revolutionizing our ability to visualize and simulate the potential consequences of our environmental and resource management decisions. These advances are enabling scientists, governments and industry to peer into the remotest corners of the globe, with a perception far beyond human senses. Our challenge is to determine the most efficient way to establish technologies and processes that will enable us to better manage critical ecosystems through the integration of digital earth system science, including remote sensing data, into legal systems at all levels of resource management.
Professor Durwood Zaelke (1)
Emerging technologies are revolutionizing the collection, organization, application, storage, and distribution of earth science information and enabling more cost-effective decision-making and better environmental protection. Satellite remote sensing and digital systems, including geographic information systems (GIS), provide powerful tools for visualizing and solving complex legal and environmental problems.
The use of digital technologies in performing tasks or making decisions that are vulnerable to legal dispute presents significant challenges to the courts in understanding how the information was derived, processed, and presented and in weighing the probative value of the information against its potential to confuse. Despite the tremendous opportunity for technologies to enable more informed, cost-effective decisions, issues of credibility, acceptability, and other evidentiary hurdles are impeding the integration of these technologies into the routine operations performed by public and private environmental stewards. Until scientists and attorneys work together to educate triers of fact to develop protocols for general acceptance, courts will be reluctant to work through the associated complex science and mathematics necessary to assign evidentiary value to the information. Thus, uncertainty about the information's viability in court will stifle the growth of the commercial remote sensing market and delay the development of applications, which will confirm that remote sensing and digital information systems can greatly improve environmental management.
This article (1) describes the basic technologies and capabilities of earth science satellites and digital information systems to open readers' minds to possible applications, (2) evaluates evidentiary hurdles to the acceptance of remotely-sensed and other digital information in the courts, (3) presents an analysis of opportunities to integrate these systems in environmental assessment and resource management, and (4) concludes that the removal of evidentiary impediments will improve environmental protection, result in cost-saving or cost-avoidance in decision-making, and accelerate the growth of commercial remote sensing and GIS industries.
II. THE PROCESS, TECHNOLOGY, APPLICATION, AND MARKET OF REMOTE SENSING DATA
This section describes the basic technologies and capabilities of satellite remote sensing and the data flow processes from collection through presentation. The potential for error during each process is highlighted, establishing bases for evidentiary challenges. Part II. A details the remote sensing data collection process, Part II. B describes historic and currently available remote sensing satellites, Part II. C provides examples of how practitioners are applying remote sensing technologies to environmental problems, and Part II. D presents an overview of the commercial remote sensing markets.
A. The Remote Sensing Basics