GPS and Location Data as Evidence under the Bharatiya Sakshya Adhiniyam, 2023: Sources, Accuracy, Proof and Privacy

The Adhiniyam names 'locational evidence' in the illustrations to the definition of 'document', and the addition is new. It reflects a change in what courts are asked to look at: where a case once turned on who saw whom, it now frequently turns on where a device was, recorded automatically, continuously and to a precision no witness could achieve. The material is powerful. It is also an inference rather than an observation, and its accuracy varies by two orders of magnitude between sources.

1. Locational Evidence Is a Document

The expression 'locational evidence' appears nowhere in the Indian Evidence Act. Its inclusion settles that a location record is a document to which the whole of Part III applies, and it is a small but telling indication of what the drafters expected courts to be handling.

2. The Sources and What Each Is Worth

Location data comes from several sources of very different reliability, and the first step in any case is to identify which is being relied upon.

Two further sources are not strictly location data but establish presence with certainty and are frequently more useful: access and transaction records — a toll payment, a card transaction, an access-control entry, a transit card tap — and automatic number plate recognition records. These place a person or a vehicle at a specific point at a specific time, without any of the inference that satellite or network positioning involves.

3. Relevance

Location records enter under the ordinary heads, and identifying the head determines what must be established.

Section 7 makes relevant facts which fix the time or place at which a fact in issue happened. This is the principal head.

Section 5 makes relevant facts constituting the state of things under which a fact in issue happened, or affording an opportunity for its occurrence. A record placing a device near a scene establishes opportunity.

Section 9 makes relevant facts inconsistent with a fact in issue, and facts making its existence highly improbable. A record placing a device far from the scene at the material time is the modern form of a plea of alibi, and it is frequently the strongest defence evidence available.

Section 6(2) makes conduct relevant. A journey to a place before an occurrence, or away from it afterwards, is conduct, and a location history records it in a way no witness could.

Section 28 makes relevant entries in books maintained in electronic form. A commercial tracking record maintained by a transport operator or a fleet manager falls here.

4. Proof

The route depends on where the record comes from.

From the device. A location history recovered by forensic extraction is ordinarily primary evidence under Explanation 6 to Section 57, being material in automated storage in a computer resource. Where it is recovered from a cached or temporary file, the Explanation applies directly.

From a service provider. Location history held in an account with a platform requires the record to be obtained from the provider, with the certificate difficulties that attend all third-party electronic records. Where the account holder downloads his own history, the download is from proper custody and is primary evidence under Explanation 4, unless disputed.

From a network operator. Cell site information in a call detail record is proved by the operator's certificate under Section 63(4), furnished by the nodal officer.

From a tracking service. Records maintained by a vehicle-tracking or fleet-management provider are business records within Section 28, and are proved by a certificate from the provider under Section 63(4).

In each case the four conditions in Section 63(2) must be satisfied where the record is not primary evidence, and condition (c) — proper operation of the device or system — is worth particular attention with location data, because a positioning receiver that has lost signal reports differently from one that has not.

5. Accuracy and Its Limits

Location evidence is frequently presented as though a recorded position were a fact observed. It is not, and five limitations should be established in every case in which it matters.

The accuracy estimate. Most systems record, alongside each position, a figure indicating how confident the computation was. A position recorded with an accuracy of eight metres and one recorded with an accuracy of two thousand metres look identical on a map and mean entirely different things.

Signal conditions. Satellite positioning degrades badly indoors, in basements, among tall buildings and under dense cover. In such conditions a device may fall back on network or wireless positioning, which is far less precise, and may report a position derived from an access point that has since been moved.

The interval between fixes. A location history is a series of points, not a continuous track. Between two recorded positions the device may have gone anywhere consistent with the time available. A history showing a device at two places an hour apart says nothing about where it was in between.

Interpolation in presentation. Software that displays a location history commonly draws a line between successive points, producing an apparently continuous journey. The line is a drawing, not a record, and the underlying data should be examined rather than the picture.

Clock accuracy. A position is only as useful as its timestamp, and a device clock that is wrong makes the whole record wrong in a way that is not visible on its face.

6. Device and Person

Location data records the movements of a device. Connecting it to a person is a separate exercise, and it is where location cases are decided.

The problem is sharper here than with most electronic evidence, because a phone is easily left behind, lent, carried by somebody else, or placed in a vehicle. A record showing a device at a place is entirely consistent with its owner being elsewhere, and the defence that the phone was with a family member is neither novel nor implausible.

What connects the device to the person is an accumulation: use of the device at or around the material time, which shows somebody was operating it; who that somebody was, established from the content of communications, unlock events, or biometric records; corroborative sources, such as a card transaction or a toll payment at the same place and time, which establish the presence of the person rather than of the device; and conduct and admission.

Section 90 forbids any presumption as to who sent an electronic message, and the same reasoning applies to location: the record is about equipment.

The point cuts both ways, and it is worth noticing that it favours the defence. To use location data offensively, a party must connect the device to the person, which requires additional evidence. To use it defensively, under Section 9, the argument is that the device was elsewhere — and where the prosecution case is that the accused personally carried out an act at a place, a device far away is a real difficulty for it however the attribution question is answered.

7. Privacy

A location history is among the most intrusive records a person generates. It discloses where he lives and works, whom he visits, what he does, and what he believes — inferences that follow from movement in a way they do not from most other records.

The practical consequence is not exclusion. On the general Indian position in Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, the test of admissibility is relevancy, and evidence is not shut out because of the manner in which it was obtained unless a statute so provides.

It is that the scope of the collection is answerable. Extracting a person's entire location history over years, in an investigation concerning a single afternoon, invites the objection that the intrusion exceeded what the investigation required. A request confined to the relevant period is both easier to justify and harder to attack, and the confinement should appear on the face of the requisition.

8. Where Location Evidence Is Used

Four settings account for most of it.

Alibi. Under Section 9, records showing the accused's device far from the scene. This is the strongest and most common use, and it is subject to the ordinary rule that the plea must be established with reasonable certainty and that its failure does not prove the prosecution case.

Placing an accused near the scene. The mirror image, and much the weaker of the two, because it requires both the accuracy of the position and the attribution to the person to be established.

Reconstructing movement. In cases of abduction, trafficking or transport of contraband, a sequence of positions establishes a route, and the route may be corroborated by toll records, fuel purchases and automatic number plate recognition.

Commercial and employment disputes. Vehicle-tracking records in transport and logistics disputes, and in employment matters concerning attendance, deployment and misuse of a vehicle. These are business records under Section 28, and they are ordinarily the most reliable location evidence available because the systems are purpose-built and maintained for operational reasons.

9. A Practical Checklist

1. Identify the source before anything else, because accuracy varies by two orders of magnitude between satellite and network positioning.
2. Obtain the accuracy estimate for each position relied upon, and not merely the coordinates.
3. Obtain the raw data, not a map image, because a drawn track interpolates between points.
4. Establish the interval between fixes, and what it leaves open.
5. Verify the device clock, since a position with a wrong time proves nothing.
6. Seek corroboration from records that establish the presence of a person — a card transaction, a toll payment, an access-control entry.
7. Plan the attribution case separately, because the record concerns a device.
8. Confine the request to the relevant period, and be ready to justify its scope under Puttaswamy.
9. Apply early, since location history held by providers is subject to retention limits.

10. The Position Stated Shortly

1. Locational evidence is named in the illustrations to Section 2(1)(d), and the addition is new to the Adhiniyam.
2. Location is computed, not observed, and every position carries an error which is part of the record.
3. Sources differ enormously in accuracy — satellite positioning in metres, network positioning in kilometres.
4. Relevance is under Sections 5, 7, 9, 6(2) and 28, according to what the record is being used to prove.
5. Records recovered from a device are ordinarily primary evidence under Explanation 6 to Section 57.
6. A location history is a series of points, not a track, and the line on a map is a drawing.
7. The record concerns a device, not a person, and attribution requires separate evidence.
8. Collection engages informational privacy under Puttaswamy, and the scope of a request is answerable even though admissibility is not affected.

11. Related Topics and Provisions