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Journalistic, Academic material cannot be seized without judicial warrant, say draft guidelines to Supreme Court

Following directions by the Supreme Court in the search and seizure case, Advocate for petitioner Prasanna S. submitted the following interim guidelines regarding search and seizure activities

Search and seizure of privileged, professional, journalistic, or academic material will require a judicial warrant and can only be carried out if the material in question “is directly part of the crime under investigation and not merely evidence of the same” said the petitioners in a list of 7- interim guidelines submitted to the Supreme Court following earlier directions.

On November 7, the Supreme Court said that better guidelines must be put in place for search and seizure to address the privacy threats in such situations. While the government argued that there are already provisions in place for journalists to back up their data before the devices are seized, Justice Sanjay Kishan Kaul had raised concerns about the potential abuse of power by law enforcement agencies.

The guidelines now provide a strict procedure for search and seizure adding that “Where these basic precautions have not been maintained, such material will not be used in any court or against any person accused of an offence or in any manner whatsoever.”

Devices can only be seized by a judicial warrant: “If any form of privileged or personal material is sought to be made the subject of a search, it shall only be by a judicial warrant specifying with utmost particularity that part of the material and its strict relevance. There shall be no warrantless search for privileged, personal, or journalistic information, and the warrant shall specify what exactly is required and why,” said the guidelines clarifying that all seizure of electronic devices requires a judicial warrant. Even in case of exceptional cases like emergency seizure, the reasons for not obtaining the warrant must be recorded in writing. Further, even this recording has to state the reason for the seizure and the capacity within which they are seized.

Information that must be clearly stated in warrant application/recording document:

“a. Whether it is the physical device that is relevant to the investigation or the information it contains.

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  1. Whether the device is the object of crime, if so, for what purpose it is needed in the investigation?
  2. Whether it is the tool of crime, if so, how and in what manner it is relevant to the investigation?
  3. Whether it contains evidence, in which case, the precise nature of the thing that is sought as evidence, the basis for suspecting that the same will be found in the device, and its relevance to the case must be specified.”

The seizure of each device must be justified in such an manner and only those devices may be investigated by the law enforcement agencies. The guidelines also stated that seizure on the “conjecture that evidence may be found” is not a valid reason for such an action.  Further, all this information must be served to the device owners before the seizure.

Initial examination following seizure: The device must be produced before an independent agency within 24 hours of the seizure. The examination must be carried out in the presence of the owner or the owner’s representative. The agency will create hash value and record the same in the seizure/ examination memo. Copies of the has value will be given to the accused/ device owner as well.

Owners have a right to protect irrelevant information: Owners should be able to remove any and all information stored in a device under the supervision of the independent agency if the authorities require the physical device for the criminal investigation rather than the information stored therein. During the examination, the agency must separate all irrelevant, personal, and privileged material from the required information in front of the owner and only make copies of the relevant parts.

“The investigating agency shall be barred from accessing and disclosing the nature of irrelevant, privileged, or personal material contained in any electronic device,” said the guidelines.

Password and similar information need not be shared: The owner of the electronic devices cannot be forced to share any credentials, passwords, information, including any cloud-stored information except as statutorily prescribed.

“No electronic devices shall be seized or searched other than as aforesaid and no person shall be summoned by the police to produce their electronic devices whether as witnesses or accused,” said the guidelines

Data retention guidelines: The seized device must be returned to the owner or deposited in the concerned court within 30 days of seizure, with the seizure memo specifying the date, time and location where the devices shall be returned to the owner. However, if no relevant information is found even after examination, the authorities cannot retain the device indefinitely.

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Similarly, “If the initial examination shows that the ground for the warrant is not established the device should be immediately and directly returned by the Investigating Officer without retaining any material or part of the device whatsoever,” said the guidelines.

Further, if a device must be necessarily retained, irrelevant but inextricably linked material must not be examined, imaged, copied or used for any purpose other than for proving the source and/or integrity of the linked relevant material.

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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.

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