Monday, December 4, 2023

Safeguards are crucial

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On November 7, the Supreme Court expressed concern over the arbitrary seizure of media professionals’ digital devices like phones and laptops and asked the centre to come up with better guidelines to regulate the powers of the investigating agencies. The division bench of Justices Sanjay Kishan Kaul and Sudhanshu Dhulia was hearing a PIL filed by the Foundation for Media Professionals through counsel Rahul Narayan, who sought for guidelines to be put in place for the search and seizure of digital devices by law enforcement agencies.

The bench said that it is important to know that journalists have confidential information about their sources and other confidential material in their devices, which cannot be made public. Justice Kaul orally said that there needs to be some guidelines for seizure of devices of media professionals as they have contact details of their sources on their phones, and this is serious. Justice Dhulia weighed in by pointing out that they are supposed to give you the hash value (of the seized device).

Attempting to underscore the seriousness of the issues raised in the petition, Senior Advocate Siddharth Agarwal, appearing for the Foundation, stated that there are hundreds of journalists whose digital devices have been taken away arbitrarily. He pleaded that the issues raised in the 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 and financial data. He said that 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,” Agarwal argued.

The central government was represented by Additional Solicitor General (ASG) SV Raju who stated that the authorities cannot be shut out from examining such devices. The ASG contended that the chances of there being some anti-nationals among media professionals cannot be ruled out. The ASG clearly said that the media cannot be above the law. However, the bench still maintained that it would be dangerous if the government is given overarching powers on such issues in the absence of any guidelines. 

The central government was given a month’s time by the bench to suggest what guidelines could be put in place to govern such seizures of digital devices. The bench added that the matter cannot be treated as an adversarial one, and that the government has to play a role in shaping the necessary guidelines.

Another such petition was placed before the top court filed by a group of five academicians and researchers. The petition filed by the Academicians and Researchers had said that the investigating agencies are exercising unbridled powers when it comes to seizing digital devices that contain “much, if not all, of a citizen’s personal and professional life”. The petitioners added that such seizures must be done in a civilised way, guided by the directives of the apex court.

In the latest petition, the Foundation highlighted the inadequacy of the existing laws, originally designed for physical searches and seizures, to address the complex challenges posed by digital spaces. The provisions in various legislative enactments regulating the power of the 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 said.

“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 petition stated.

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

The Foundation 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,” the petition further stated.

A free press depends on the free flow of information from the media to the people and from the people to the media. Journalists, worldwide, whether working for local or national newspapers, or national or international television companies, routinely depend on non-journalists for the supply of information on issues of public interest. Some individuals come forward with secret or sensitive information, relying upon the reporter to convey it to a regional, national or international audience in order to achieve publicity and stimulate public debate.

In the circumstances, journalists have stated that they should be entitled to refuse to divulge both the names of their sources and the nature of the information conveyed to them in confidence. The argument is used in relation not only to written information, but also to other documents and materials, including photographic images, published or unpublished.

Many have depended upon such codes in courts of law, when faced with orders to reveal the identity of their sources. Despite the clear advantages of ensuring that journalists protect the anonymity of their sources, situations arise when the interests of journalists clash with other powerful interests and rights. Often, the clash relates to the administration of justice, commonly where information is relevant to a criminal or civil proceeding.

The Supreme Court had given a major decision in 2017 on the question of the right to privacy. The Constitution bench, consisting of nine judges, had unanimously declared the right to privacy as a fundamental right. The bench said that the right to privacy is part of the right to life and personal liberty given under Article 21 of the Constitution. The bench rejected two old decisions of the Court in which privacy was not considered a fundamental right. In 2021, in the Pegasus case, the Court had said that every citizen of India should be protected from the violation of privacy.

In setting up a high-level technical inquiry into Pegasus snooping row, the Supreme Court ruled that commoners had as much right to privacy as journalists, activists and the high and mighty, but unhesitatingly attached cardinality to the media’s privacy rights, saying this enabled the public watchdog to function without fear and tell the truth to the power. The then Chief Justice, NV Ramana, who wrote the judgment that accused the government of using an Israeli surveillance programme to spy on the mobile phones of journalists and activists, had highlighted the need to protect journalistic sources from prying eyes.

The Supreme Court had underlined that protection of journalistic sources is one of the basic conditions for the freedom of the press. Without such protection, sources may be prevented from assisting the press in informing the public on matters of public interest. 

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

—By Adarsh Kumar and India Legal Bureau

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