Unreasonable Enforcement

We need to have checks and balances in law enforcement, even though technological advancements will allow us to take shortcuts. Else we will not be able to prevent state overreach that affects the fundamental rights of citizens.

This article was first published in The Mint. You can read the original at this link.

In the fall of 1991, that Agent William Elliott of the US Department of the Interior began to suspect that Danny Kyllo was growing marijuana in his home in Florence, Oregon. But mere suspicion was not going to get him very far. For Kyllo to be brought to justice they needed to physically search his house and no judge was going to issue a warrant on the basis of a hunch.

Which is why, on the 16th of January, 1992, Agent Elliott pointed a thermal imager at Danny Kyllo’s home and, having detected heat signatures consistent with the sort of high-intensity halide lamps used for indoor marijuana cultivation, 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 was, he argued, a violation of his Fourth Amendment Right against unreasonable search and all evidence flowing from that was 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 foot inside his home to obtain the initial evidence - their use of thermal imaging technology was as much of an intrusion as if they had broken in.

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

At Any Cost

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 doing it? Isn’t growing marijuana a crime? If so, does it really matter if the evidence of the commission of the crime was obtained using remote scanning technology or not?

As we think on these issues 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 conceptualisation of the role of the state, is an unacceptable outcome.

There is probably no situation where the stakes are greater than in a criminal investigation. It is here that the machinery of the state 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. It is here that checks and balances are most important.

When these restrictions are applied, law enforcement will be constrained in what they can do to bring criminals to book. As a result, some will inevitably get away. We need to realise that this will happen, and accept it for what it is - because the alternative - having innocent bystanders subject to egregious intrusions at the hands of the state - 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 the mandatory linkage of Aadhaar 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.

The Problem with Technology

Technology exacerbates the problem.

New technologies are, almost always, 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 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.

New Techniques

Not only is this is 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 they are legally constrained to operate. Instead, they must work to come up to speed with the new technology, develop novel investigative techniques that work within the new paradigm we all find ourselves in and find ways to catch the criminals despite the technological advantage they might have.

As impossible as this might seem, I know it’s possible. Because we have done this before.