In the fall of 1991, US Interior Department agent William Elliott began to suspect that Danny Kylo was growing marijuana at home in Florence, Oregon. But mere doubt was not going to take him very far. To bring Kylo to justice, his house had to be searched, and no judge was going to issue a warrant based on a hunch. That is why, on January 16, 1992, Elliot pointed a thermal imager at Danny Kylo’s home, and, using a heat signature analogous to the type of high-intensity holiday lamp used for indoor marijuana cultivation. After finding out, the agent was able to convince a judge. Issuance of warrant Kylo was arrested and indicted on federal drug charges. Once in court, Kylo moves to suppress the evidence confiscated from his home. He argued that the thermal scan was a violation of his Fourth Amendment right against unreasonable search and that all evidence that emerged was the fruit of a poisonous tree. He expected privacy within his home and it didn’t matter that the government hadn’t set a foot in to obtain preliminary evidence—his use of thermal imaging technology from afar was as much of an intrusion as the actual break-in. ,
That case went all the way to the US Supreme Court, which, in a split (5–4) decision, ruled in Kylo’s favor. If the government uses a device that is not in general public use (such as a thermal-imager at the time) to trace details of a private home that were previously unnoticed without physical intrusion, the US Supreme Court can Granted, such surveillance would be a Fourth Amendment “discovery” that could not have been done without a warrant.
The common man may find this decision astonishing. If our aim is to punish criminals, does it really matter how we go about it? Isn’t it a crime to grow hemp? If so, how exactly does it matter that evidence of the commission of this crime was obtained using remote scanning technology?
It is important to remind ourselves that the use of violence is the monopoly of the state. Therefore, it is important to ensure that the exercise of state power is always subject to proper checks and balances. Failure to do so will make innocent civilians victims, and this, in our modern conception of the role of the state, is unacceptable.
There is perhaps no situation where the stakes are higher than in a criminal investigation. It is here that the state machinery is under most pressure to bring criminals to justice, and where, as a result, either accidentally or with willful neglect, the rights of the innocent are most likely to be trampled upon. Therefore, this is where checks and balances are most important.
When these restrictions are in place, law enforcers are constrained as to what they can do to bring criminals to justice. As a result, some law breakers will inevitably turn away. We need to recognize that this will happen, and accept it for what it is, because the alternative would be to subject innocent bystanders to serious infiltration at the hands of the state—and that is far from over.
India does not enforce the concept of due process exactly as the US does, but the underlying principle – that state power should always be subject to reasonable restrictions – is well established in Indian jurisprudence. When the Supreme Court of India held that mandatory linking of Aadhaar numbers with our bank accounts was a disproportionate exercise of state power, it said that “[U]Under the guise of prevention of money laundering or black money, there cannot be a comprehensive provision that targets every resident of the country as a suspect. See openly violating restrictions on state power—often on a daily basis, unfortunately.
Technology has compounded the problem. Almost always, new technologies are more widespread than they used to be. They do what was previously impossible, what was relatively trivial to accomplish, often on a much larger scale than previously thought. If we allow the state to use technology in the exercise of its power and fail to apply proper checks and balances for the harm caused by these new technologies, the innocent will inevitably suffer.
We are seeing this play out in the context of online messaging services, where the state’s desire to prevent messages exchanged between criminal elements is prompting the government to remove the security that end-to-end encryption. provides. The State maintains that it has no choice but to intervene in this manner; Criminals have no compulsion on what technology they can or cannot use and if law enforcement agencies are forced to fight with their hands tied behind their backs, the bad guys will win.
This approach is not only constitutionally untenable, but 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 should never be to undermine the checks and balances under which law enforcers are legally bound to operate. The basic principles are just as needed. Instead, they must work to get up to speed with new technology, develop new investigative techniques that operate within the new paradigm that we all meet, and work to catch criminals regardless of any technological advantage. find ways.
As impossible as it may sound, I know it is possible. Because we’ve done it before and can do it again.
Rahul Mathan is a participant in Trilegal and also a podcast called Ex Machina. His twitter handle @matthan . Is