Supreme Court Calls For Guidelines To Safeguard Privacy During Search And Seizure Of Digital Devices Of Media Professionals

Today, the Supreme Court asked the Central Government to assess the necessity of implementing guidelines designed to safeguard individuals from potential misuse of their personal data when law enforcement agencies search and seize digital devices. The Court stressed on violation of privacy in such situations and reiterated that "privacy has been recognized as a fundamental right".

The Bench of Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia were dealing with a Public Interest Litigation filed by a group of media professionals seeking to establish safeguards and comprehensive guidelines to prevent unreasonable interference by law enforcement agencies for search and seizure of digital devices.

Appearing for the Petitioner, Senior Advocate Siddharth Agarwal submitted to the Court that many journalists have had their devices seized, bringing to light several significant issues that concern both the general public and the journalistic community. He stated that the entire digital footprint resides on that one device, raising questions about the protection of personal and financial data.

"This is not about political dispensation, this is about state power versus an individual's right", submitted Agarwal. He also submitted that the Court should consider whether an investigating agency can compel a person to obtain password or biometric information, and whether such action is permissible under Article 20? Additionally, he added, "Once the investigation agency comes it is not even a situation where I can take a backup for ensuring that no tampering is done".

On the other hand, appearing for the Respondent, Additional Solicitor General SV Raju submitted,"He is right in a way, but there are serious offenders, anti-national elements who would conceal some important data, so some balance has to be there. There are several legal issues also... You cannot shut me off totally; the investigating agency has to go through the entire mobile to find out that one bit which is relevant to the prosecution." ASG also stated that while the prayer in the Petition is to shut out the investigating agency completely.

However, agreeing with the contention of the Petitioner that some guidelines were required, Justice Kaul remarked, "Mr. Raju this is very difficult to accept that some kind of an all within-power agencies have, this is very-very dangerous I think. You must have better guidelines, what we have to do we will do, there is no difficulty, but I think it is time you do it yourself. My view is that you must do it yourself to make sure it is not misused. You must analyse what kind of guidelines are necessary to protect them." Justice Kaul also stated, "To some extent, this is not adversarial in that sense."

The Bench also observed, "These are media professionals, they will have their own sources and will have some other aspects, now if you just take everything away there is a problem. There must be some guidelines and you (ASG) must ensure there must be some guidelines."

Accordingly, the Court ordered, "Learned ASG 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 to us on this issue."

The Court was further apprised by the counsel appearing for the Petitioner that after the seizure of devices, people have been unable to pay the school fee of their children. Counsel also added, "They have very private photographs. So privacy is also an angle which has to be considered."

Agreeing with the said submission, Justice Kaul remarked, "That is what is troubling us...we have made privacy a fundamental right." The Court in its order further added, "This is also in view of the aspect that privacy itself has been held to be a fundamental right" and ordered the matter to be posted on December 6, 2023.

The PIL filed by the Foundation for Media Professionals through the Advocate-on-Record Rahul Naryan has emphasised the growing dependence of its members on personal digital devices for journalistic work. PIL states that the media persons' work often involves handling confidential information of public importance, private correspondences with sources and whistle-blowers, and remote collaboration to break news stories in the public interest. Consequently, they seek comprehensive legal protections for the right to privacy in the digital realm.

The Petition also highlights the limitations of existing laws, which were initially formulated for physical searches and seizures, in addressing the intricate challenges presented by the digital environment.

Cause Title: Foundation for Media Professionals v. Union of India & Ors. [Writ Petition (Criminal) No. 395 of 2022]