In an era defined by digital footprints, police forces worldwide are harnessing powerful new technologies to track and apprehend criminals. However, this expansion of investigative power is increasingly clashing with fundamental rights to privacy, prompting courts to set crucial legal boundaries.
Global Cases: When Digital Tools Overstep
A landmark example unfolded in the United States involving Timothy Carpenter. In 2011, the FBI, investigating a series of armed robberies in Michigan and Ohio, bypassed a traditional search warrant. Instead, they obtained a court order forcing his mobile carrier to hand over 12,898 location data points, mapping his movements over four months. This evidence was pivotal in securing his conviction.
This case highlights a broader trend. Beyond location data, investigators now access message histories and digital payment records, uncovering crimes that might otherwise remain hidden. Yet, as governments aggressively boost surveillance capabilities, these methods threaten constitutional safeguards.
In the United Kingdom, the Investigatory Powers Act compels phone companies to ensure devices can decrypt user data on demand, effectively weakening end-to-end encryption. Similarly, France's Senate passed an amendment requiring messaging apps to create technical backdoors for police to read encrypted messages. France also champions the EU's 'Chat Control' plan, mandating platforms to scan messages for illegal content before encryption.
The Judicial Pushback Protecting Liberties
These technological encroachments are meeting significant judicial resistance. When the Carpenter case reached the US Supreme Court, Chief Justice John Roberts declared the warrantless seizure of cell-site data unconstitutional. He noted such access lets the government "travel back in time to retrace a person’s whereabouts."
In Europe, the European Court of Justice has invalidated laws requiring bulk metadata retention. Germany's Federal Constitutional Court blocked police in Hesse from using Palantir's predictive policing software, extending privacy protections to algorithmic surveillance.
India's Parallel Privacy Challenge
India's regulatory path mirrors these global tensions, raising identical constitutional concerns. Amendments to the IT Rules 2021 require significant social media intermediaries to identify the "first originator" of information, a mandate critics say would break end-to-end encryption on platforms like WhatsApp. This rule is currently challenged in courts.
Separately, Indian tax authorities have issued notices to payment aggregators like UPI apps, directing them to furnish transaction data to identify unregistered merchants and tax evaders.
Both initiatives must pass the stringent test established in the landmark Puttaswamy vs Union of India judgement, which affirmed privacy as a fundamental right. A key prong of this test is necessity—the government must prove these measures are the least restrictive way to achieve a stated goal.
Broad, indiscriminate data collection that treats all citizens as suspects is unlikely to survive judicial scrutiny. The Supreme Court has held that potential misuse by a few cannot justify sweeping intrusion into the private lives of the entire population.
The Path Forward: Technology That Respects Rights
The solution lies not in abandoning digital tools but in adopting forensic methods suited for the digital age while upholding democratic values. Techniques like differential privacy, secure multi-party computation, and anomaly-detection algorithms can analyze aggregated data to spot suspicious patterns without exposing individual identities. Only if such analysis raises legitimate suspicion should investigators seek access to personal information.
This demands a shift in institutional mindset—embracing investigative techniques that protect the innocent while enabling effective policing. These methods may differ from traditional surveillance but align more closely with constitutional principles and the core values of a democratic society.
The author, Rahul Matthan, is a partner at Trilegal and author of ‘The Third Way: India’s Revolutionary Approach to Data Governance’. The original analysis was published on December 2, 2025.
