The Supreme Court in Frank Vitus v. Narcotics Control Bureau & Ors on February 23 issued notice to Google India for the purposes of obtaining information on how dropping a PIN on Google Maps works in the context of setting the same as a condition for bail.

The issue is whether such condition infringes the fundamental right to privacy, the Court said in its order.

Even as technology enhances the government’s capacity to encroach upon areas normally guarded from inquisitive eyes, the Supreme Court has sought to assure preservation of that degree of privacy.

As enunciated by the United States Court of Appeals in In Re Facebook Inc Internet Tracking Litigation, in order to state a claim based on alleged violations of their constitutional right to privacy, plaintiffs must allege facts showing: (1) a specific, legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct that is sufficiently serious in their nature, scope and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right.

These elements do not constitute a categorical test, but rather serve as threshold components of a valid claim to be used to weed out claims that involve so insignificant an intrusion on a constitutionally protected privacy interest as not even to require an explanation or justification by the defendant.

Google’s earlier response on PIN location and tracking in legal proceedings

Google submitted its responses to the Civil Investigative Demands (CIDs) by the United States Attorney General’s Office (AGO) on February 21, 2020. The extensive and elaborate 110-page document goes into minute details of how Google tracks the location of the user from multiple sources and how its anonymised data does not violate privacy.

The demands were for information regarding user location tracking, source and nature of the explicit user location types, triangulation of data collected, the frequency with which location information is collected, Google’s User Privacy thresholds and differential privacy techniques.

Google refers the AGO to its semi-annual Transparency Report, which provides information about the requests for user data Google receives from government agencies, courts, and parties in civil litigation.

In United States v. Okello T Chatrie, a declaration by Marlo McGriff, who is a Location History Product Manager at Google, briefly explains how the dependencies on Google Location History (GLH), Google Location Accuracy (GLA), Web and App activity (WAA), GPS data to calculate location, Geofencing and Google’s Privacy policy play a vital role in arriving at the exact user location.

Google’s Sensorvault: A treasure trove of data

The Sensorvault database is connected to a Google service called Location History. This feature, which began in 2009, involves Android and Apple devices. It includes detailed location records involving at least hundreds of millions of devices worldwide and dating back nearly a decade.

Location History is not on by default. Google prompts users to enable it when they are setting up certain services — traffic alerts in Google Maps, for example, or group images tied to location in Google Photos. If you have Location History turned on, Google will collect your data as long as you are signed in to your account and have location-enabled Google apps on your phone. The company can collect the data even when you are not using your apps, if your phone settings allow that. And those who enable Location History can see a timeline of their activities and get recommendations based on where they have been. 

To review all of your Location History, you can download your data from Google. To do that, go to https://takeout.google.com and select Location History. You can follow a similar procedure to download your web & app activity on that page. Your Location History data will appear in computer code. If you can’t read code, you can select the “JSON” format and put the file into a text editor to see what it looks like.

The overall arc of technological privacy

1. State’s overwhelming and substantial interest

In Samson vs California, the US Supreme Court repeatedly acknowledged that a state has an “overwhelming interest” in supervising parolees, because parolees are more likely to commit future criminal offences. The interest in combating recidivism is the very premise behind the system of close parole supervision.

In, Griffin vs Wis, the Court repeatedly acknowledged that a state’s interest in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees, warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.

2. Reasonable expectation of privacy

In United States vs. Knights, it was held that reasonableness is determined by assessing, on the one hand, the degree to which the search intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.

In evaluating the degree of intrusion into Knights' privacy, the US Supreme Court found his probationary status “salient”, observing that probationers “do not enjoy the absolute liberty” of other citizens.

Examining the totality of the circumstances pertaining to the petitioner’s status as a parolee, “an established variation of imprisonment” which even includes plain terms of the parole search condition, it was concluded that the petitioner did not have an expectation of privacy that society recognizes as legitimate.

3. State surveillance augmented by technology

In United States v. Knotts, it was held that the Fourth Amendment does not prohibit the police from augmenting their sensory faculties with the scientific and technological enhancement of a beeper, and scientific enhancement of this sort raises no constitutional issues that visual surveillance would not also raise.

4. Geo-fence warrants in terrorist conspiracies

The new orders, sometimes called “geofence” warrants, specify an area and a time period, and Google gathers information from Sensorvault about the devices that were there. It labels them with anonymous ID numbers, and detectives look at locations and movement patterns to see if any appear relevant to the crime. Once they narrow the field to a few devices they think belong to suspects or witnesses, Google reveals the users’ names and other information.

Is the right to privacy is infringed by dropping a PIN on Google Maps as part of a bail condition?

Although no single rubric definitively resolves which expectations of privacy are entitled to protection, the goal is to secure the right to privacy against arbitrary power and to place obstacles in the way of excessive police surveillance.

The legislative intent can be gleamed through a Parliamentary Standing Committee report on prison reforms.

The Parliamentary Committee on Home Affairs in Report No 245 on Prison-Conditions, Infrastructure and Reforms has recommended ankle trackers or bracelets on prison inmates to reduce overcrowding in prisons. The Committee notes that most of the time, bail is denied on three counts: the undertrial prisoner may influence or intimidate the witness(es); will try to leave the country; or commit another crime. In the context of bracelet/anklet trackers used by the Odisha government, the Committee took the view that technology can be explored to produce cost-effective bracelets or anklet trackers that can be worn by the prisoners who have procured bail and are out of prison on bail. Through the use of these kinds of trackers, administrative machinery or human resources involved in keeping track of prisoners who are out on bail can be reduced and it could be a cost-effective method for keeping track of such prisoner without the involvement of large administrative staff strength. At the same time, it must be ensured that to avoid any kind of human rights violation, this scheme or method should be used on a voluntary basis after procuring the consent of inmates. The Committee was of the opinion that this can also minimize the problem of overcrowding in prisons to some extent.

In a world where data is the new oil and when the likes of Google and other companies harness user data for advertising to earn billions of dollars, the contours of privacy cannot be viewed narrowly, but with reasonable restrictions and consent of the user. India, like USA, should consider adopting the third-party doctrine which says there is no expectation of privacy in information voluntarily provided to others. The US Supreme Court’s self-described caution in leveraging technology and advances in science in the narrow prism of privacy for bail seekers has to be revisited.

Prasanth Raju is an advocate associated with the Chambers of Senior Advocate Vikram Nankani.