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In the fall of 1991, Agent William Elliott of the US Department of the Interior began to suspect that Danny Kyllo was growing marijuana at home in Florence, Oregon. But mere suspicion was not going to get him very far. For Kyllo to be brought to justice, his house had to be physically searched, and no judge was going to issue a warrant on the basis of a hunch. Which is why, on 16 January 1992, Elliott pointed a thermal imager at Danny Kyllo’s home, and, having detected heat signatures consistent with the sort of high-intensity hallide lamps used for indoor marijuana cultivation, the agent was able to convince a judge to issue a warrant. Kyllo was arrested and indicted on a federal drug charge. Once in court, Kyllo moved to suppress the evidence that had been seized from his home. The thermal scan, he argued, was a violation of his Fourth Amendment Right against unreasonable search and all evidence flowing from that was the fruit of a poisoned tree. He had an expectation of privacy within his home and it didn’t matter that the government had not set a foot inside to obtain the initial evidence—their use of thermal imaging technology from afar was as much of an intrusion as an actual break-in.

That case went all the way up to the US Supreme Court, which, in a split (5-4) decision, ruled in favour of Kyllo. If the government uses a device that is not in general public use (such as thermal-imagers at the time) to explore details of a private home that were previously unknowable without physical intrusion, America’s apex court held, such surveillance would be a Fourth Amendment “search" that could not be conducted without a warrant.

To the layman, this decision might seem surprising. If our objective is to bring criminals to book, does it really matter how we go about it? Isn’t growing marijuana a crime? If so, how does it really matter if evidence of the commission of this crime was obtained using remote scanning technology?

It is important to remind ourselves that the state has a monopoly over the use of violence. It is, therefore, important to ensure that the exercise of state power is always subject to appropriate checks and balances. Failure to do so would make victims out of innocent citizens, and this, in our modern conceptualization of the state’s role, is unacceptable.

There is probably no situation where the stakes are greater than in a criminal investigation. It is here that the state machinery is under the greatest pressure to deliver criminals to justice, and where, as a result, either accidentally or with calculated disregard, the rights of the innocent are most likely to be trampled upon. Therefore, it is here that checks and balances are most important.

When these restrictions are applied, law enforcers are constrained in what they can do to bring criminals to justice. As a result, some law-breakers will inevitably get away. We need to recognize that this will happen, and accept it for what it is, because the alternative would be to have innocent bystanders subject to egregious intrusions at the hands of the state—and that is far, far worse.

India does not apply the concept of due process in exactly the same way as the US does, but the underlying principle—that the power of the state must always be subject to reasonable restrictions—is well established in Indian jurisprudence. When the Indian Supreme Court held that mandatory linkage of Aadhaar numbers to our bank accounts was disproportional exercise of state power, it pointed out that “[U]nder the garb of prevention of money laundering or black money, there cannot be such a sweeping provision which targets every resident of the country as a suspicious person." And yet, despite decisions like this, we need look no further than the morning papers to see restraints on state power flagrantly violated—often on a daily basis, unfortunately.

Technology exacerbates the problem. Almost always, new technologies are more pervasive than the ones that preceded it. They make what was previously impossible relatively trivial to carry out, often at a much larger scale than before. If we allow the state to use technology in the exercise of its power and fail to impose checks and balances properly tailored to the harms these new technologies could cause, the innocent will inevitably suffer.

We are seeing this play out in the context of online messaging services, where the state’s desire to intercept messages exchanged between criminal elements is pushing the government to remove the protection that end-to-end encryption offers. The state maintains that it has no option but to intervene in this manner; criminals have no constraint on what technology they can or cannot use and if law enforcement agencies are forced to fight them with hands tied behind their backs, the bad guys will win.

Not only is this approach constitutionally unsustainable, it is downright lazy. Advances in technology have always made it easier for criminals to stay ahead of the law. But the response of law enforcement must never be to weaken the checks and balances under which law enforcers are legally constrained to operate. Basic principles require as much. Instead, they must work to get up to speed with the new technology in question, develop novel investigative techniques that work within the new paradigm we all find ourselves in, and find ways to catch criminals in spite of any technological advantage they might have.

As impossible as this might seem, I know it is possible. Because we have done this before and can do it again.

Rahul Matthan is a partner at Trilegal and also has a podcast by the name Ex Machina. His Twitter handle is @matthan

 

 

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