Police's Power To Search Citizens' Phones: Journalists' Body Raises Privacy Concerns Before Supreme Court

The Supreme Court has agreed to examine 'to what extent phone contents of a citizen, who's being probed or searched by the police, are protected under right to privacy'. The apex court bench of Justices KM Joseph and Hrishikesh Roy issued notice to the government on Tuesday on a petition filed by journalists' body, Foundation of Media Professionals. 

"We are very excited by this development and hope that the misuse of police powers to violate the privacy of individuals at the time of search and seizure of electronic devices can end,'' advocate Vrinda Bhandari, who is representing the petitioners, told BQ Prime.  

The petition raises several concerns regarding the powers of enforcement agencies during investigations to compel an individual to share passwords of personal devices without prior judicial scrutiny. BQ Prime has reviewed a copy of the petition, which has asked the apex court to lay down guidelines on production, search and seizure of contents of digital devices. 

 Specifically, it has asked the court to examine:

• Whether existing laws that cover search of places and production of documents shall also apply to information contained in digital devices.

• If law enforcement agencies can demand passwords and complete information on personal devices, assuming the current search and seizure rules allow access to digital devices.

• Under what circumstances can the searches be permitted without a warrant, and in what situations such a warrant must be permitted.

• The extent of cooperation that can be sought from a person during search of a digital device- would different standards apply to the 'accused' versus other persons?

• How the information accessed by police will be processed and regulated without leading to any breaches of the right to privacy.

The journalists' body has requested the court to make it mandatory for law enforcement officers to attain a warrant issued by a magistrate before accessing contents of a citizen's personal device. 

It has also pointed to news reports from Hyderabad and Bengaluru detailing instances of police officers stopping citizens on the road, and checking their phones. The absence of clarity on the legal position is one of the reasons behind such incidents, says the petition, adding that it's even more worrisome for journalists whose devices have confidential information about others as well. “Journalists are necessarily reliant on such devices to be able to freely and effectively practice their profession”. 

Finally, the petition also requests the apex court to declare that the constitutional provision which protects a citizen from testifying against oneself, also applies to a citizen not keen to share contents of his electronic devices.

The Supreme Court's written order is yet to be made public.