Media group calls on SC to stop police from seizing cellphones without warrant

What are the news: On October 18, the Supreme Court issued an opinion in a plea by a group of journalists asking the court to regulate police search and seizure powers, including in cases of electronic devices.

According to the petition seen by MediaNamathe Foundation for Media Professionals (FMP) asked the Supreme Court to declare “that the content of the digital device and the password/access code/biometric identifier of an arrested/accused person is protected by the safeguard against coerced self-incrimination under Article 20(3)( ) of the Constitution of India.

He also asked that the court recognize these actions as a violation of the right to privacy and call for a model bill to ensure that these actions are “in accordance with the fundamental rights guaranteed by Part III of the Constitution”.

A bench consisting of Justice KM Joseph and Justice Hrishikesh Roy heard the case with lead counsel Siddharth Aggarwal appearing for the FMP. After hearing the arguments, the bench ordered the Indian government to respond to the petition and marked a similar case titled Ram Ramaswamy & Ors. v. Union of India & Ors which is also mentioned in the pleading.

Why is this important: The “seizure of mobile phones” has become a common practice for the police when arresting an individual. In fact, the Internet Freedom Foundation (IFF) which provided legal support in the aforementioned case said that today police are arresting and taking people’s phones on the streets. The idea must seem daunting to anyone with a phone in the 21st century. Examination of any individual’s personal devices is an invasion of privacy. The plea of ​​the FMP aims to frame these invasive powers granted to the police. Such measures are badly needed given that the government has already passed the Criminal Procedure (Identification) Rules 2022 which gives more power to the police.

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FMP declares seizure of unique digital devices among 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 they are connected to cloud data in addition to stored data. For example, the plea mentioned how journalists hold sensitive information in their devices that can compromise the safety of sources and like-minded people.

“There is undisputed and unequivocal recognition across the world that the involvement of the rights at stake in searches or seizures of digital devices is unique and incomparable to searches or seizures of material in the physical domain, requiring statutory provisions and special legal rules to govern the former,” the plea said.

Taking devices is a violation of article 20, paragraph 3: The plea pointed out that requiring a decryption key from an arrested person to open their device compels a person to participate in an investigation against them. This violates section 20(3) which prohibits a person from testifying against themselves.

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

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“The mere fact of providing access confirms that the accused has control of the device in question and presumes that the accused is responsible for and aware of the contents of the device,” the plea said stating that the forces of the order can resort to adequate technological solutions rather than asking the person.

Forced device access violates basic privacy rights: Further, he said authorities had “no justification” on proportionality grounds for asking a person to access their personal device and “examine the most private corners of their life.” This turns the investigation into a “traveling and fishing investigation” based on material that the individual must provide – destroying their right to privacy.

Thus, the plea rejects the idea that “criminal activity deserves no privacy” because “it renders the presumption of innocence meaningless by presuming that a single accusation should deprive an individual of all privacy on the various faces of his life “.

Additionally, personal devices contain information about a person’s health, sexual preferences, political beliefs, finances, all of which deserve privacy. Thus, the questioning of this right must satisfy the legal criteria provided for in Articles 14, 19 and 21 of the Constitution. The Supreme Court has a four-pronged analysis to determine the validity of any rights-violating state action:

  1. whether the incriminated action has a legal basis
  2. if it pursues a necessary public interest
  3. whether the interest of the State is proportionate to the infringement of fundamental rights, and
  4. whether there are sufficient procedural safeguards to guarantee the fundamental rights

The plea argued that the seizure and search of digital devices has no legal basis since Articles 51, 91, 92, 93, etc. of the CrPC and similar provisions in special laws compel the production of “documents or things”, not “electronic records”. .” Further, he argued that even if there is a legal basis for such production, law enforcement still needs a “necessary state purpose.” Warning against warrantless searches, the plea read:

“Such a regime casts a broad shadow over all people, leaving them fearful of such easy intrusions into their privacy, resulting in a chilling effect that notably restricts the full expression of individual dignity and fundamental freedoms guaranteed by the Constitution” , said the plea.

Issue procedural directives until regulations are in place

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As mentioned above, advocacy calls for the government to develop relevant laws and regulations regarding the seizure and examination of devices. However, until such arrangements are made, the plea suggests that law enforcement obtain a court warrant to access people’s devices. The warrant application must “state the nature of the information” expected from the move “with reasonable cause for such expectation.”

Similarly, the request must pass the proportionality test under Article 21. It must also protect the information obtained from leaks, delete information that is no longer necessary and prevent the data collected from being shared with other agencies. or government departments.

“In the absence of any law governing the protection of personal data, it is absolutely necessary to ensure the existence of sufficient procedural safeguards to regulate not only access to personal data by state agencies , but also to regulate their processing and deletion, to ensure that the right to privacy is not made completely redundant,” the plea said.

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