The Supreme Court’s direction to the Union government to frame guidelines to protect the interests of media professionals with regard to the seizure of their digital devices is a timely first step. Recent actions against journalists, whose laptops and smartphones were seized and searched, have sent a chilling message not just to the wider media fraternity but also to whistle-blowers and others who speak to journalists on the condition their identity will not be revealed. If a journalist’s communication devices can be seized and their data examined on the flimsy grounds of allegations, it compromises sources and impedes news professionals’ ability to do their job. In this way, it impinges on the freedom of the press and also strikes at the right to livelihood of journalists, as digital devices have become the critical tools of the profession.
The guidelines must ensure that law enforcement agencies are not permitted to seize or search devices without a prior judicial warrant, clearly laying out the information that the agency expects to find, rather than authorising an unlimited fishing expedition. Journalists must not be forced to incriminate themselves or their sources by being compelled to provide passcodes or biometric data. The guidelines must include protocols to safeguard the devices and the data, to ensure that it is not leaked or tampered with, or passed on to third parties, and that data irrelevant to an investigation is deleted in a timely manner. Technological interventions allow for the cloning of a device, thus allowing journalists to continue their work and not depriving them of their own data for an unspecified period. Similarly, it is important to create a record of the device at the time of seizure to ensure that incriminating material is not planted on it during the investigation process. The Court, in its directive to the Additional Solicitor-General, indicated the need for a “balancing of interests”. Thus, the guidelines must be drafted in a transparent manner and involve public consultations. The Court referred to the fact that “privacy itself has been held to be a fundamental right”, indicating that this is an issue involving all citizens whose professional and personal lives are increasingly contained in a vulnerable hand-held device. Beyond these guidelines for media professionals, there is a need to update the laws allowing search and seizure by law enforcement agencies to take these new digital realities into account.
