Tl;dr

The Foundation for Media Professionals (‘FMP’) has approached the Supreme Court seeking regulation of the police’s power to search or seize electronic devices. In the petition, they highlighted that existing laws do not regulate the police’s power to search or seize electronic devices. The lack of regulation enables the police to engage in dubious practices such as mandating individuals, with or without reasonable suspicion, to grant access to mobile devices; making clones of those devices; and sharing the information they obtain with third parties or governmental agencies. These practices violate the right to privacy and the constitutional guarantee against self-incrimination. The Supreme Court has issued notice in the petition after hearing submissions from Senior Advocate Siddharth Aggarwal, who appeared on behalf of FMP. IFF provided legal support.

Why should you care?

In the past few years, instances of police stopping people on the street and forcing them to hand over their phones have become frequent. Similarly, police have also been using WhatsApp chats of those they arrest to keep them in custody. Often, these chats are not even related to the offence for which they have been arrested, and they even find their way to media houses. Since mobile devices are essentially an extension of ourselves, the lack of regulation on how they should be searched has enabled police to access troves of anyone’s personal information to the detriment of their right to privacy. This state of affairs is particularly worrying for journalists who rely on digital devices to collaborate with sources and whistleblowers. FMP has approached the Supreme Court seeking a remedy for this situation.

FMP’s Petition before the Supreme Court

FMP is an association of journalists which has raised important issues before the Supreme Court which affect journalists such as Sedition, Defamation and Internet Shutdown. FMP in the present petition, a copy of which is available here, has argued that:

1) The existing legal regime does not regulate the police’s power to search / seize digital devices

The power of law enforcement agencies to compel the production of material by search / seizure is provided under the Code of Criminal Procedure, 1973 (CrPC) as well as various special enactments which derive their basis from CrPC such as Income Tax Act, 1961, Customs Act, 1962, Competition Act, 2002 and Companies Act, 2013. However, these provisions were enacted to permit the police to search / seize objects in the physical world. The gist of the general existing law is that ‘documents’ or ‘things’ can be provided willingly by persons in response to requests by police to provide the same. Alternatively, law enforcement agencies can intrude into a person’s privacy by carrying out searches of ‘places’ and / or seizing ‘things’ or ‘documents’. While the law requires police to obtain warrants prior to intruding on a person’s privacy, this is subject to broad exceptions. In any case, and crucially, the power extends only to ‘documents’ or ‘things’ or ‘places’, none of which include electronic records.

2) Lack of regulation facilitates the violation of the right to privacy

Digital devices are unlike any physical objects as they contain a significant amount of deeply intimate data that could reveal more about an individual’s life than anything held at a physical place. The lack of specific regulation of search / seizure of digital devices enables law enforcement agencies to use the general law to access mobile devices. As stated above, instances of police stopping people on the street and forcing them to hand over their phones have become frequent. Similarly, it is also common for personal data in the custody of police to find its way to media houses, which liberally use private information to conduct media trials.

3) Need for Supreme Court’s intervention

Considering the lack of regulations and the impact it has had on the right to privacy, FMP has approached the Supreme Court asking it to declare that 1) persons should not be compelled to provide their password to law enforcement agencies; and 2) the legal regime of search and seizure does not cover search, seizure and access to contents of personal devices. FMP has also asked the Court to issue guidelines to fill the lacuna in the existing legal regime until a law is passed by the Parliament. The guidelines should state that:

a. Police should obtain a warrant before searching devices. The warrant should not be general, and it should set out the information the police expect to find on the device, with reasonable cause for such expectation.

b. Any application for a warrant should demonstrate to the judicial magistrate that it fulfils the proportionality standard, which means that- 1) obtaining evidence should be impossible by other means; and 2) state interests justify the high degree of violation of privacy.

c. Law enforcement agencies should be directed to put in place safeguards to ensure that the information they obtain is not leaked. They should also be directed to delete the information they collect once it is no longer necessary and such information should not be shared with other government agencies.

Proceedings before the Supreme Court

A bench of the Supreme Court comprising Justice K.M. Joseph and Justice Hrishikesh Roy heard the matter today where Senior Advocate Siddharth Aggarwal, appearing for FMP, argued the existing legal regime does not regulate search / seizure of devices and that intervention of the Supreme Court was necessary. After hearing Mr. Aggarwal, the bench issued notice, directed the Union Government to respond to the petition and tagged the case with an existing matter which is also on the same subject, titled Ram Ramaswamy & Ors. v. Union of India & Ors..

We are grateful to Senior Advocate Siddharth Aggarwal for appearing on behalf of FMP. He was assisted by Advocate-on-Record Rahul Narayan and Advocates Gautam Bhatia, Vrinda Bhandari, Abhinav Sekhri, Tanmay Singh, Vishwajeet Singh Bhati, Krishnesh Bapat, Anandita Mishra, Natasha Maheshwari and Madhav Aggarwal.

We are able to work on such important cases which seek to advance the right to privacy in the digital age only because of the support you provide. Keep us running by donating to us or by becoming a member.

Important Documents

1. Writ Petition filed by Foundation for Media Professionals. (link)