Seizure Of Journalists' Digital Devices A Serious Matter, Better Guidelines Needed To Protect Media Professionals : Supreme Court To Centre

A bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a public interest litigation (PIL) filed by the Foundation for Media Professionals through Advocate-on-Record Rahul Narayan urging the court to establish safeguards against unreasonable interference by law enforcement agencies and create comprehensive guidelines for search and seizure of digital devices.

"There are several complicated, legal issues that are required to be examined," Additional Solicitor-General SV Raju told the bench during today's hearing, seeking an adjournment. During the brief courtroom exchange, Senior Advocate Siddharth Agarwal, appearing for the petitioner, attempted to underscore the seriousness of the issues raised in the petition and the threats that law enforcement agency's unmitigated search and seizure powers posed to constitutional guarantees - 

"There are hundreds of journalists whose digital devices are taken away en masse. The issues raised in this petition are very significant because there are no guidelines with reference to when and what may be seized, what can be accessed, what kind of protection is ensured for personal data, health data, financial data...The entire digital footprint is on that one device. Once an investigating agency is involved, it's not like the person can have a back-up..."

The additional solicitor-general protested at this juncture, saying that there were provisions, which, among other things, allowed a person whose digital devices have been seized to back up their data. Justice Kaul, however, stressed the importance of guidelines to protect journalists from arbitrary seizures -

"It's a serious matter. These are media professionals who will have their own sources and other things. There must be some guidelines. If you take everything away, there's a problem. You must ensure that there are some guidelines."

While the data recovered from the digital devices ought not to be disclosed to third parties, the investigating agency has to go through the data to find the portion that is relevant to the investigation, ASG Raju insisted. "You cannot shut out the investigating agency completely and totally. Their prayer is to do just this." 

In response, Justice Kaul firmly said that guidelines were required to ensure that the powers of the agency were not misused in this respect -

"Mr Raju, I'm finding it very difficult to accept some kind of all-within power that the agencies have...This is very dangerous. You must have better guidelines. If you want us to do it, we'll do it. But my view is that you ought to do it yourself. It's time that you ensure that this is not misused. It can't be a State that's run only through its agencies. We'll give you time, no difficulty. But you must analyse what kind of guidelines are necessary to protect them. To some extent, this is not adversarial in that sense."

This is about state power against individual rights, Agarwal chimed in. "Today, investigating agencies compel people even to provide biometric information...There are issues that need to be considered. This is used by all political dispensations, not any particular one."

"One dispensation teaches the other," Justice Kaul quipped.

Agarwal continued, "The media is a common enemy to everybody because truth is something that comes through us."

"I agree that the media has rights," ASG Raju interjected, "But they are not above the law."

To this, Agarwal countered, "We only want the law to be laid down."

"You need to lay down guidelines," Justice Kaul agreed, before pronouncing -

"Learned additional solicitor general requests for some time to better examine the matter so that he can make submissions. We have however put to the learned ASG that there has to be a balancing of interests and proper guidelines need to be in place to protect the interest of media professionals. We would like the learned ASG to work on this and come back on this issue. This is more so in view of the aspect that privacy is held to be a fundamental right."

The hearing will continue on Wednesday, December 6. 

Recently, a group of media organizations, in the wake of raids of journalists associated with 'NewsClick', had written to the Chief Justice of India seeking guidelines on seizure of digital devices.

Background

The Foundation for Media Professionals, a society of journalists, has highlighted the increasing reliance on personal digital devices by its members for their journalistic work, which often involves handling “confidential information of public value, private correspondence with sources and whistle-blowers, and remote collaboration to break news stories in the public interest”. Therefore, the society, it has been argued, has a specific interest in advocating for adequate legal safeguards for the right to privacy in the digital space.

In its writ petition, the foundation has underscored the inadequacy of existing laws, originally designed for physical searches and seizures, to address the complex challenges posed by digital spaces. These provisions in various legislative enactments regulating the power of law enforcement agencies to compel the production of materials derive their basis from the erstwhile criminal procedure codes that were enacted “in a legal framework where the notion of limited government did not exist”. The petition states –

“In the modern world of limited government based on constitutionalism, where personal digital devices have become extensions of themselves, and where such devices contain vast amounts of personal and intimate data, existing legal safeguards are insufficient to adequately protect an individual's constitutional rights. Because of this, there is – in effect – a legal vacuum when it comes to the balance between the right to privacy in the digital space and the legitimate interests of law enforcement agencies. This legal vacuum has facilitated ongoing and continuing police practices of dubious constitutionality, such as cordon searches, roving and fishing demands for accessing mobile devices and making 'clone' copies of their complete contents, and compelling arrested persons and potential witnesses to unlock their mobile phones.”

The situation, the foundation has argued, has been further complicated by a 2021 Karnataka High Court judgment issuing guidelines for investigating officers to carry out searches and for the preservation of the evidence gathered during the process in respect of smartphones, electronic equipment, or email accounts. This judgment, the petition states is “erroneous, and misinterprets the constitutional guarantee against self-incrimination”.

The foundation has also raised concerns over the 'unsettling trend' of law enforcement agencies conducting intrusive searches and seizures of personal digital devices, leading to a chilling effect on the exercise of constitutional freedoms, particularly within the journalist community –

“A legal possibility for being compelled to hand over one's digital devices which contain a trove of not only sensitive personal data but also sensitive and confidential professional information such as the details of informants, sources, financial data, without these having any nexus between purported law enforcement interests, casts a serious and indelible chilling effect across society generally, and the journalist community more specifically which has been rendered unable to fully exercise its basic constitutional freedom of speech and exercising one's profession.”

Pointing to previous instances of judicial intervention in view of legislative insufficiencies threatening constitutional rights, such as when the Supreme Court issued its famous Vishaka guidelines on sexual harassment, the foundation has urged the court to issue guidelines to strike a balance between the right to privacy in the digital space and the legitimate interests of law enforcement, in line with established judgments. While doing so, the petitioner has raised several critical questions for the court's consideration, including the circumstances under which searches and seizures of personal digital devices can be conducted, the protection of an individual's right against self-incrimination in the digital domain, measures to prevent the misuse and leakage of collected data, and the deployment of the principle of proportionality in safeguarding privacy rights.

Case Details

Foundation for Media Professionals v. Union of India & Ors. | Writ Petition (Criminal) No. 395 of 2022

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