Probe and privacy

A VIEW OF the U.S. Supreme Court building, in Washington, D.C.-WIN MCNAMEE/GETTY IMAGES/AFP

In a landmark judgment, the U.S. Supreme Court explains why use of technology in investigation must be regulated to prevent the violation of privacy rights.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or af?rmation, and particularly describing the place to be searched, and the persons or things to be seized.

- Fourth Amendment to the U.S. Constitution

INVESTIGATION of crime has never been easy in any part of the world, particularly now when life has become complicated and combative and crime has escalated in volume and variety. Equally true is the fact that the majority of policemen are not cut out for the task. It is more a job than a profession for them, and this explains the appalling standards of policing in India. Things would have been worse but for the handful of men in each police force who are dedicated detectives.

Solving a crime takes time. Many policemen have neither the skill nor the patience to pursue even the simplest of leads. It is precisely this situation that drives many investigators to cut corners and indulge in unlawful practices. The scene is particularly dismaying in India where many policemen are inclined to resort to the third degree to obtain quick results or to plant extraneous material on an unwitting suspect to frame him out of sheer spite or under directions from the supervisory ranks.

A decision of the United States Supreme Court ( United States vs Jones) delivered on January 23 has many home truths which could help educate investigators on certain dos and don'ts while handling clues. Indian police officers should study the impressively worded judicial order carefully and keep it in mind at every step of an investigation.

In this case, Antoine Jones, the owner and operator of a nightclub in District of Columbia, was under the joint watch of the Federal Bureau of Investigation (FBI) and the Metropolitan Police Department of Washington, D.C., in 2004 for suspected trading in narcotics. The surveillance mounted on him included the use of a camera at the entrance to the club, a pen register and the monitoring of his cellphone. While this was going on, the police applied to the district court for a warrant authorising the use of an electronic tracking device on a jeep belonging to Jones' wife. The court issued the warrant but specified that it should be used within 10 days of the order, that too only in the D.C. area.

The police installed a global positioning system (GPS) tracking device on the undercarriage of the jeep while it was parked in a public parking lot in the neighbouring State of Maryland. They did it on the 11th day of the court order. Thus, there were two contraventions by the police here. The installation of the device on the car was done outside D.C. and the operation was executed one day after the time limit imposed by the court. The vehicle was tracked for four weeks and information picked up by multiple satellites fed to a police computer through a cellphone. According to an estimate, the police acquired more than 2,000 pages of data. Jones was indicted on various counts, including possession of cocaine and an intention to distribute it to the public.

Jones mounted a challenge to the police operation with a plea to the district court that it reject the GPS evidence because the use of such a device violated his constitutional right to privacy. The court permitted the motion partly. It agreed to ignore evidence collected from the jeep when it was parked in a garage adjoining the house where Jones lived. But it refused to do so in respect of the rest of the evidence on the grounds that a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy.

After a hung jury in 2006, a grand jury one year later held that Jones and his co-conspirators were guilty. Jones was convicted to life imprisonment. On appeal, the conviction was overturned by the U.S. Court of Appeals on the grounds that the prosecution's evidence was collected through a warrantless search, an action that violated the Fourth Amendment to the U.S. Constitution. It was against this backdrop that the government went on appeal to the Supreme Court.

The judgment in the case was unanimous and was delivered by Justice Antonin Scalia. Justice Sonia Sotomayor joined it and also filed a separate concurring judgment. Justice Samuel Alito did likewise.

Perhaps, most significant and critical was Scalia's ruling that the installation of a GPS device on the target's vehicle and its use to monitor the car's movements constituted a search. The reasoning was that the government had in such circumstances physically occupied private property for the purpose of obtaining information. It must be mentioned here that when first conceived the Fourth Amendment had a major slant in favour of protecting an individual's property. Hence, until recently, most judgments in respect of the Fourth Amendment concentrated on this aspect rather than on any other issue relating to privacy rights.

In the Jones case, the Supreme Court (Justice Scalia) categorically rejected the U.S. government's contention that there had been no search at all within the meaning of the Fourth Amendment and that what the officers concerned did here was a mere information-gathering intrusion (as the court put it) on what the government referred to as an open field. Justice Scalia also rejected the government stand that even if this was a search, it was a reasonable search. Scalia said that such a position had not been taken by the government before the lower court, which did not, therefore, examine the reasonableness criterion at all. Implied here was that the government was shifting its stand as an afterthought, after having been found violating the district court's conditions for using a GPS device against Jones.

Investigating officers resorting to practices such as the planting of a GPS or similar devices will have to be particularly wary of what Justice Sotomayor so perceptively said. She pointed out that GPS surveillance extracted so much information on an individual at such low cost, which was liable to be stored for future use, that it required careful and selective deployment. The temptation for gross misuse arose from the fact that the technology deployed was simple and saved the government a lot of money in terms of manpower not deployed. Also to be kept in mind was the fact that it proceeds surreptitiously, [and] it evades the ordinary checks that constrain abusive law enforcement practices.

Interestingly, Sonia Sotomayor did not fail to express her misgivings over the perils to freedom arising from the unlimited production of and access to digitally generated information. She concluded: I would not assume that all information voluntarily disclosed to some members of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. I thought this well-argued, comprehensive survey of the perils of modern technology could come only from as brilliant and persuasive a judge as Sonia Sotomayor, who joined the nine-strong Bench in August 2009 as the third female and first Latina judge.

In the Jones case, Justice Alito, who was joined by three other judges, endorsed the view that a technical trespass followed by the gathering of evidence constitutes a search. He added this was analogous to the status of wiretapping and electronic eavesdropping. He observed that in the pre-computer age, the sheer impracticality of it prevented long-term surveillance of suspects and offered considerable protection to their need for privacy. Alito lamented that the U.S. Congress had not yet brought in a law to regulate GPS technology. It was only because of this serious lacuna that U.S. courts had now to go purely by Fourth Amendment requirements. This was a brilliant and visionary point of view by Justice Alito, which could spur lawmakers in the U.S. to enact legislation taking into account GPS and similar technology.

I have chosen to dwell at length on the Jones case because it introduces a new dimension into the art of criminal investigation. It first tells the average law enforcement officer in India that there is no shortage of technical aids, provided he is willing to use them. Such aids are not only efficient but they also help prevent him from falling prey to illegal assaults on a citizen's privacy rights. This is why the National Police Academy, Hyderabad, and State police training institutions provide some inputs in the area to entry-level officers. But I am not sure that in investigation this move has brought in the desired preference to technology over traditional methods.