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Stop warrantless search of personal digital devices: media association appeals to SC for regulation

The plea argues that this violates the right to privacy and protections against self-incrimination, seeking regulation

india police

What’s the news: The Supreme Court on October 18 issued notice in a plea by a group of journalists asking the court to regulate the search and seizure powers of the police, particularly in case of electronic devices.

As per the petition viewed by MediaNama, the Foundation for Media Professionals(FMP) asked the apex court to declare “that the contents of an arrested/ accused person’s digital device and password/ passcode/ biometric ID are protected by the guarantee against compelled self-incrimination as under Article 20(3) of the Constitution of India.”

It also asked that the court acknowledge such actions as a breach of the right to privacy and call for a draft model legislation to ensure such actions are “in consonance with the fundamental rights guaranteed under Part III of the Constitution.”

A bench comprising Justice K.M. Joseph and Justice Hrishikesh Roy heard the matter with Senior Advocate Siddharth Aggarwal appearing for FMP. After hearing the arguments, the bench directed the Government of India to respond to the petition and tagged a similar case titled Ram Ramaswamy & Ors. v. Union of India & Ors that is also mentioned in the plea.

Why it matters: ‘Seizure of mobile phones’ has become a common practice for the police when arresting any individual. In fact, the Internet Freedom Foundation (IFF) that provided legal support in the abovementioned case said that nowadays police stop and take people’s phones on the street. The idea must come across as daunting to anyone who owns a phone in the 21st century. The examination of any individual’s personal devices is an invasion of privacy. The FMP’s plea seeks to regulate these invasive powers granted to police. Such measures are greatly needed considering the government has already passed the Criminal Procedure (Identification) Rules 2022 that gives more power to the police.

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FMP says seizure of digital devices unique from other items

In the plea, the FMP said that “the implication of privacy interests” is much higher in the case of personal digital devices because it is connected to cloud data aside from stored data. For example, the plea mentioned how journalists hold sensitive information in their devices that can jeopardise the safety of sources and similar folk.

“There is an uncontested and unequivocal recognition across the globe of the rights’ implication at stake in searched or seizures of digital devices being unique and incomparable to searches or seizures for material in the physical realm, requiring special statutory provisions and legal rules for governing the former,” said the plea.

Taking devices is a violation of Article 20(3): The plea pointed out that demanding a decryption key from an arrested person to open their device, coerces an individual to participate in an investigation against them. This violates Article 20 (3) that prohibits a person from being a witness against themselves.

Earlier, the court held an exception to this rule if the material is not used as evidence but for investigation purposes of comparison. However, the plea argues that access to personal digital devices furnishes a clear link in the chain of evidence.

“The mere fact of providing access confirms that the accused person has control over the device in question, and enables a presumption that the accused is responsible for and aware of the contents of the device,” said the plea stating that law enforcement agencies can resort to adequate technological solutions rather than asking the person.

Forced access to devices violates basic privacy rights: Further, it said the authorities have “no justification” on grounds of proportionality to ask a person for access of their personal device and “to scrutinise the most private recesses of their life.” Doing so turns the investigation into a “roving and fishing inquiry” based on material that the individual has to provide – destroying their right to privacy.

Accordingly, the plea rejected the idea that “criminal activity deserves no privacy” because “it denudes the presumption of innocence of all meaning by presuming that a single accusation ought to deprive an individual of any privacy over the various faces of her life.”

Moreover, personal devices contain information about a person’s health, sexual preference, political beliefs, finances, all of which deserves the safeguard of privacy. Thus, implicating this right must satisfy the legal tests under Articles 14, 19 and 21 of the constitution. The Supreme Court has a four-fold analysis to determine the validity of any rights-violating state action:

  1. whether the impugned action has a legal basis
  2. whether it is pursuing a necessary state interest
  3. whether the state interest is proportionate to the harm of fundamental rights, and
  4. whether sufficient procedural safeguards exist to secure the fundamental rights

The plea argued that the seizure and search of digital devices has no legal basis since Sections 51, 91, 92, 93, etc. in the CrPC and similar provisions in special Acts compel the production of ‘documents or things,’ not “electronic records.” Further, it argued that even if there is a legal basis for such production, law enforcement agencies still need a “necessary state objective.” Warning against warrantless searches, the plea said:

“Such a regime casts a wide shadow upon all persons leaving them fearful of such easy intrusions into their privacy, resulting in a chilling effect notably curtailing the fullest expression of individual dignity and the fundamental freedoms guaranteed by the Constitution,” said the plea.

Issue procedural guidelines until regulations are in place

As mentioned above, the plea asks that the government form relevant laws and regulations regarding the seizure and examination of devices. However, until such provisions are made, the plea suggests that law enforcement agencies obtain a judicial warrant to access people’s devices. The application for the warrant should “set out the nature of information” expected from the move “with reasonable cause for such expectation.”

Similarly, the application should satisfy the test of proportionality under Article 21. It should also safeguard the obtained information against leaking, delete information that is no longer necessary and prevent sharing of the collected data with other government agency or department.

“In the absence of any law governing protection of personal data there is an acute need for ensuring sufficient procedural safeguards to exist to regulate not only the accessing of personal data by state agencies but also to regulate its processing and deletion, to ensure that the right to privacy is not rendered completely redundant,” said the plea.

This post is released under a CC-BY-SA 4.0 license. Please feel free to republish on your site, with attribution and a link. Adaptation and rewriting, though allowed, should be true to the original.

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Written By

I'm interested in the shaping and strengthening of rights in the digital space. I cover cybersecurity, platform regulation, gig worker economy. In my free time, I'm either binge-watching an anime or off on a hike.

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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