A draft of guidelines on the issue of seizing personal electronic devices by investigating agencies was submitted by five renowned academicians, namely Ram Ramaswamy, Madhava Prasad, Sujata Patel, Deepak Malghan and Mukul Kesavan, during the ongoing hearing of their petition in the Supreme Court. The Supreme Court was hearing the plea filed by the five to regulate the search of electronic devices, such as cell phone and laptops, by agents of the state and the police. The plea also sought for safeguards against “unreasonable interference” by law enforcement agencies.
Notably, on November 9, the Supreme Court had directed senior advocate Nitya Ramakrishnan for the circulation of the above-mentioned suggested set of guidelines to the Union government as well as the state governments. This move had come after the Supreme Court had asked the Union government to lay down guidelines on the seizure of electronic devices. On November 7, while hearing a separate PIL (Public Interest Litigation) filed by the Foundation for Media Professionals, the Supreme Court had deemed it to be “unacceptable” that there are no rules governing the seizure of such devices and there seems to be “uncontrolled power to access devices of journalists”.
The Supreme Court bench had observed: “It is dangerous all powers are with the agencies … it is very, very dangerous.”
The bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia had also observed that proper guidelines are needed in this regard to prevent any misuse by the investigating agencies. As per the report of The Wire, the union government is expected to take into account the circulated draft of guidelines and submit a response in court.
What are the guidelines suggested in the draft?
As reported in The Wire, the guidelines suggested by the academics comprise 18 points which have been extensively footnoted with references to the law in overseas jurisdictions. The guidelines had been submitted through advocate S Prasanna. These are as follows:
Method of seizure of electronic devices: The draft guidelines provided that seizure of electronic devices can only be conducted after a judicial warrant. Though emergency seizure must be an exception, reasons for not obtaining a judicial warrant must be recorded.
Express reason of seizure: In both the cases of seizure, with warrant or emergency seizure, it must be “expressly” mentioned why and in what capacity the device is required to be seized. Electronic items shouldn’t be seized on the ground that evidence may be found. “In other words, seizure on the conjecture that evidence may be found will not be permissible in any circumstance especially where the device does not belong to an accused person,” the draft guidelines states, according to another report in the NewsClick.
The guidelines provide that privileged, professional, journalistic or academic materials can’t be seized without a judicial warrant and only if the material is directly linked with the crime. “If the intention is to search such privileged, professional, journalistic or academic material, then it must only be by a judicial warrant and upon the ground that the said material is directly part of the crime under investigation and not merely evidence of the same,” the draft guidelines states as per the report of NewsClick.
Production and retention of materials seized: The seized device shall be produced before an independent agency and all irrelevant, personal and privileged material shall be identified. The device shall be returned immediately after separating relevant material and a copy taken. “At initial examination by an independent agency, in the presence of the owner of the device (or their agent), all irrelevant, personal and privileged material is separately identified, the material relevant to investigation is demarcated and only a copy of such relevant material is taken,” the draft guidelines read, as per NewsClick.
Besides this, the guidelines specified that excluded material must not be retained. “The irrelevant, privileged or personal material so excluded must not be retained, and the device itself should be returned immediately after taking a copy of only the relevant material for the investigation or suspect material.”
Addition safeguards were also placed by the draft guidelines which detailed that the investigating officer need to be bound by law to ensure that only relevant information is extracted and then the devices are timely returned to the owner. The guidelines read that “the investigation officer is bound to ensure the extraction of relevant information and timely return to the owner or handing over safe custody to a court or other authority (where the owner cannot be found) to ensure copies are not accessed by any unauthorised person”.
In case these safeguards are not duly followed, the material obtained will not be used against the accused. The guidelines state “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,” as per the Newsclick report.
Compelling owners to reveal passwords: The draft guidelines suggest that unless owners of electronic devices find themselves to be bound under statutory provisions like Section 69 of the Information Technology Act, 2000, they should not be compelled to give away their passwords.
“The person whose electronic devices are sought to be searched/seized shall not be compelled to divulge any credentials or passwords or information, including any cloud-stored information except as statutorily prescribed for e.g. Section 69 of the Information Technology Act, 2000 if and when applicable,” the guidelines stated as provided by the report of NewsClick.
In addition to this, it was provided that the laws enabling information from service providers/intermediaries may apply in the circumstances warranted in those laws.
Summons issued: The draft guidelines also specify that no summons should be issued by the police to produce their electronic devices. It read “no person shall be summoned by the police to produce their electronic devices whether as witnesses or accused”, as per the Newsclick report.
Related:
Supreme Court to hear petition on arbitrary seizure of electronics this November
Rules for seizure of electronic devices by Police: A Need of the hour
Raids on Wire editors & seizure of electronic devices did not follow law & procedure: PUCL
Prosecution Cannot Force an Accused to Divulge Password of Electronic Device: CBI Court
Handling of electronic evidence by agencies a perversion of criminal justice: CCG
Revealing the password of your device to the police amounts to self-incrimination?