SC issues notice after media collective asks for guidelines on ‘search and seizure’ of digital devices

Journalist collective Media Track, also known as the Foundation of Media Professionals, has filed a writ petition in the Supreme Court seeking guidelines on the “search and seizure” of digital devices by government agencies. The petition was filed on September 19.

The Supreme Court today issued notice to the union government and the ministries of law and finance. The Internet Freedom Foundation provided legal support for the petition, which has been listed before Justice KM Joseph.

Media Track’s plea said state agencies “seek untrammelled access to digital devices of individuals” which is contrary to the fundamental right to privacy as laid down in Article 21 of the constitution, among other provisions.

“Digital devices, especially personal devices such as mobile phones and laptops, contain more sensitive personal data about individuals than any physical space, such as a house or a vault,” the petition said. “They...are effectively an extension of the self.”

It has become a “norm for investigations” to compel arrested persons “to divulge passcodes of a digital device in order to gain real-time access to every facet of her life”. Given this, existing legal provisions are “insufficiently tailored to ensure that law enforcement agencies exercise powers in a manner consistent with the fundamental right to privacy”. Individuals are “rendered helpless and without any protection against intrusion by the state into the deepest recesses of her personal life by law enforcement agencies purportedly pursuing inquiries or investigations”.

The consequences are even more serious for journalists, the petition added, and the “unchecked powers” of the state spreads “a deleterious chilling effect in society” that needs the court’s “judicial tempering”. It noted that material accessed by agencies often finds its way to the media, which “use the same to irrevocably damage a person’s reputation”.

Among other things, the petition asked the apex court to declare that contents of an accused’s digital devices are protected under Article 20(3) of the constitution, and to pass orders directing the union government to “draft model legislation” in this regard.

Last September, following a “survey” of Newslaundry’s office by the Income Tax department, the Delhi High Court had said the department must make sure material seized from the office must not be leaked.

“You must make an endeavour because the department is not an ordinary person, but a powerful entity,” the court said. “The concept of confidentiality enshrined under Section 138 of the IT Act shall be abided.” Read the entire report here.