The Ministry of Home Affairs (MHA) has said investigating agencies before seeking information about a subscriber’s email account hosted on servers in foreign countries will have to establish that it is linked to a crime. The MHA said it was not enough to show that the accused had an email account as “the account must have something to do with the crime being investigated” and it was “the lowest legal standard required of all investigative processes”.
The MHA issued revised guidelines to streamline the process of seeking legal assistance from foreign countries in criminal matters where it issued directives for drafting and processing Letters Rogatory, Mutual Legal Assistance Requests and service of summons, notices and other judicial documents.
Most intermediaries and social media platforms like Facebook, WhatsApp, Google, Yahoo!, Twitter and YouTube have their servers outside India.
The Centre introduced The Persona Data Protection Bill, 2019 in the Lok Sabha last month that seeks to provide for protection of personal data of individuals and establishes a Data Protection Authority for it.
In the guidelines issued by the MHA to States and other agencies, it stressed on “data preservation” as it was key in the investigation of cyber offences and those involving digital evidence.
The MHA said the G-8 countries’ 24/7 Network was one such channel that could be used to place request for preserving data in real time.
“Accessing the Internet through an Internet Service Provider (ISP) creates important records and other information such as customer records, connection information and stored data. This is very important evidence to prove the guilt intention of the accused. Since this type of evidence can disappear quickly, it is of paramount importance to get the data preserved expeditiously through appropriate channels. The request may be sent to the service provider or to the CBI — the contact point in respect of G-8 24/7 Network,” the MHA said.
The G-8 network allows law enforcement agencies to make urgent preservation requests of the digital data before it perishes.
The MHA said all data including personal must be obtained and processed fairly and lawfully.
“The requested country has to be informed about the time period for which the data is required. Such period shall be consented by the requested country. The transferred data shall be kept for no longer than the period required for the purpose for which it has been received and shall be returned to the requested country or deleted at the end of the period specified.”
An MHA statement said the guidelines had taken into account the concerns raised by various courts for prompt and timely responses in service of documents on persons residing abroad. “As an initiative, the revised guidelines have provision for service of documents on authorities of foreign country preferably within 10 days of receipt of request in respect of offences committed against women and children,” the MHA statement said.
India has Mutual Legal Assistance Treaties/Agreements with 42 countries and is signatory to various international conventions. The guidelines were last revised in 2007 and 2009.
