Seizing Devices Needs Due Process. So Does Remote Accessing Via Spyware

What exactly is sought from an electronic device, and the reason for seeking it must be clearly stated in writing. Needless to say, no such system is followed by the Indian police or the agencies.

The Narendra Modi government wants Indian citizens to conduct their entire personal and professional lives via digital devices which contain all manner of information on finances, taxes, health and professional data, including research. Yet India has hardly any legal procedures or guidelines when the police or other enforcement agencies seize your devices in the course of investigations.

Most democracies, whether in the US or Europe, do not allow the seizure of devices without a judicial warrant. Even after procuring a judicial warrant, police have to observe due process relating to the specificity of what information is to be extracted, and in what manner. Elaborate guidelines ensure that the constitutional guarantee of privacy is not compromised. Last week, a set of petitioners submitted guidelines for the seizure of devices which have been circulated to the government for possible consideration.

Well-known academics Ram Ramaswamy, Madhava Prasad, Sujata Patel, Deepak Malghan and Mukul Kesavan petitioned the Supreme Court in 2021 to regulate the search of electronic devices by agents of the state, usually the police. In the course of hearings, these petitioners have suggested a set of guidelines, to be issued as directions by the court.

In a hearing of another petition by the Foundation for Media Professionals last week, the Supreme Court has asked the Centre to frame similar guidelines while observing that uncontrolled power to access devices of journalists was unacceptable.

The government will hopefully come up with a substantive response to the circulated draft of guidelines in the Ram Ramaswamy case. The interim guidelines capture the due process followed in other mature democratic societies, and this should provide some guidance to the Indian government.

In the US, the Privacy Protection Act forbids any search or seizure of material belonging to those involved in First Amendment activities. Work related to freedom of expression such as that of journalists, creative artists, academics and scientific researchers is protected by the First Amendment. Such materials are exempt from search as a source of evidence.

The UK forbids access to excluded, privileged or personal material, except under very stringent terms, and only if it is mandated by a judicial warrant.

The laws of the UK and the USA have been placed before the apex court in a compilation submitted by the petitioner academics. Search without a judicial warrant is the exception rather than the rule in these countries but in India, it is just the opposite.

What exactly is sought from an electronic device, and the reason for seeking it must be clearly stated in writing. Needless to say, no such system is followed by the Indian police or the agencies.

Recently, in the case of 90 journalists connected with the online media platform NewsClick, the police arbitrarily took away some 250 devices (in some cases, three or more devices from a person) without following any of the procedures proposed in the interim guidelines, as they do not exist in the statutes today.

In fact, the main accused in the NewsClick case is still demanding to know the specific charge against him, which justifies imposing the draconian UAPA. It is not clearly stated in the complaint.

Most of the journalists whose devices have been seized are freelancers and have not been told what exactly the police seek from their devices. Their personal data and the work of a lifetime are now with the police. The NewsClick case also cries out for due process to be established for the seizure of devices.

As per the guidelines submitted by the petitioners in the Ram Ramaswamy case, the device seized must be first examined by an independent authority in the presence of the owner/agent, and all privileged, personal and professional material must be identified, separated, protected and returned immediately. Only material directly relevant to the investigation shall be taken away ― after making three copies, one for the owner, one to be left sealed with the independent authority and the third taken for investigation, noting the hash value at every stage (which is used to validate the integrity of the data.

Finally, the interim guidelines make the fundamental point that material illegally seized from electronic devices cannot be allowed to be used as evidence in any court of law. These ideas are fundamental for a civilised democracy which offers basic constitutional guarantees to citizens.

It is entirely reasonable to expect that something concrete should emerge from the interim guidelines suggested by senior advocate Nitya Ramakrishnan on behalf of the petitioners in the Ram Ramaswamy case.

The mandatory legal requirement of a judicial warrant has arisen separately in cases relating to remotely accessing mobile phones via State-sponsored spyware attacks. Here, too, all the personal data on the device is illegally accessed and every activity of the phone, including remote access to the individual’s conversations even when the phone is not in use, gets tapped. Following the recent alert issued by Apple Inc to some Indian opposition leaders and journalists about possible “State sponsored” spyware attack on their iPhones, Congress MP Shashi Tharoor (also a recipient of the Apple alert) had raised the issue of the need for legal procedures such as a judicial order before accessing mobile phones of citizens. This issue had also come up during the Pegasus controversy when it was argued that the current laws don’t allow a spyware attack on mobile phones, exposing the entire data available in the device.

There is an urgent need for sound legal provisions, whether for seizing devices or to remotely access devices using military spyware. Otherwise, privacy as a constitutional value would cease to exist.

This piece was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been updated and republished here. To subscribe to The India Cable, click here.