Introduction
New challenges confront the Indian criminal investigation framework, particularly in the context of law enforcement agencies (LEAs) acquiring digital devices and their passwords. Criminal procedure codes delimiting police authority and procedures were created before the widespread use of digital devices and are no longer pertinent to the modern age due to the magnitude of information available on a single device. A single device could provide more information to LEAs than a complete search of a person’s home; yet, the acquisition of a digital device is not treated with the severity and caution it deserves. Following the affirmation of the right to privacy in Puttuswamy I (2017), criminal procedure codes must be revamped, taking into consideration that the acquisition of a person’s digital device constitutes a major infringement on their right to privacy.
Acquisition of Digital Devices by LEAs through Summons
Section 91 of the Criminal Procedure Code (CrPc) grants powers to a court or police officer in charge of a police station to compel a person to produce any form of document or ‘thing’ necessary and desirable to a criminal investigation. In Rama Krishna v State, ‘necessary’ and ‘desirable’ have been interpreted as any piece of evidence relevant to the investigation or a link in the chain of evidence. Abhinav Sekhri, a criminal law litigator and writer, has argued that the wide wording of this section allows summons to be directed towards the retrieval of specific digital devices.
As summons are target-specific, the section has minimal safeguards. However, several issues arise in the context of summons regarding digital devices. In the current day, access to a user’s personal device can provide a comprehensive insight into their life and personality due to the vast amounts of private and personal information stored on it. In Riley v California, the Supreme Court of the United States (SCOTUS) observed that due to the nature of the content present on digital devices, summons for them are equivalent to a roving search, i.e., demanding the simultaneous production of all contents of the home, bank records, call records, and lockers. The Riley decision correctly highlights the need for courts to recognise that digital devices ought to be treated distinctly compared to other forms of physical evidence due to the repository of information stored on digital devices.
The burden the state must surpass in order to issue summons is low as the relevancy requirement is easily provable. As noted in Riley, police must identify which evidence on a device is relevant. Due to the sheer amount of data on phones, it is very easy for police to claim that there will surely be some form of connection between the content on the device and the case. Due to the wide range of offences available for Indian LEAs to cite, it is easy for them to argue that the content on the device is relevant to any number of possible offences. LEAs rarely face consequences for slamming the accused with a huge roster of charges – even if many of them are baseless – leading to the system being prone to abuse. The Indian Supreme Court in its judgement in Canara Bank noted that the burden of proof must be higher for LEAs when investigations violate the right to privacy. Tarun Krishnakumar notes that the trickle-down effect of Puttuswamy I will lead to new privacy challenges with regards to a summons to appear in court. Puttuswamy I, will provide the bedrock and constitutional framework within which future challenges to the criminal process will be undertaken. It is important for the courts to recognise the transformative potential of the Puttuswamy judgement to ensure that the right to privacy of citizens is safeguarded. The colonial logic of policing – wherein criminal procedure law was merely a tool to maximise the interest of the state at the cost of the people – must be abandoned. Courts ought to devise a framework under Section 91 to ensure that summons are narrowly framed to target specific information or content within digital devices. Additionally, the digital device must be collected following a judicial authority issuing the summons and not a police authority. Prior judicial warrants will require LEAs to demonstrate their requirement for the digital device; on estimating the impact on privacy, the authority can issue a suitable summons. Currently, the only consideration is if the item will furnish evidence relevant to the investigation; however, judges ought to balance the need for the digital device in the LEA’s investigation with the users’ right to privacy, dignity, and autonomy.
Puttuswamy I provides a triple test encompassing legality, necessity, and proportionality to test privacy claims. Legality requires that the measure be prescribed by law, necessity analyses if it is the least restrictive means being adopted by the state, and proportionality checks if the objective pursued by the measure is proportional to the degree of infringement of the right. The relevance standard, as mentioned before, is inadequate as it does not provide enough safeguards against abuse. The police can issue summons based on the slightest of suspicions and thus get access to a digital device, following which they can conduct a roving enquiry of the device to find evidence of any other offence, unrelated to the original cause of suspicion.
Unilateral police summons of digital devices cannot pass the triple test as it is grossly disproportionate and lacks any form of safeguard against the police. The current system has no mechanism for overseeing the LEAs; as long as LEAs themselves are of the view that they require the device, they can acquire it. In Riley, SCOTUS has already held that warrantless seizure of digital devices constitutes a violation of the right to privacy. India ought to also adopt a requirement of a prior judicial warrant for the procurement of devices by LEAs. A re-imagined criminal process would have to abide by the triple test in particular proportionality wherein the benefit claimed by the state ought not to be disproportionate to the impact on the fundamental right to privacy; and further, a framework must be proposed to provide safeguards against abuse.
Compelling the Production of Passwords of Devices
In police investigations, gaining possession of a physical device is merely the first step in acquiring the data on the device, as the LEAs still require the passcodes needed to unlock the device. LEAs compelling the production of passcodes to gain access to potentially incriminating data raises obvious questions regarding the right against self-incrimination; however, in the context of digital devices, several privacy issues may crop up as well.
In Kathi Kalu Oghad, the SC held that compelling the production of fingerprints of an accused person to compare them with fingerprints discovered by the LEA in the course of their investigation does not violate the right to protection against self-incrimination of the accused. It has been argued that the ratio in the judgement prohibits the compelling of disclosure of passwords and biometrics for unlocking devices because Kathi Kalu Oghad only dealt with the production of fingerprints in order to compare the fingerprints with pre-existing evidence, as opposed to unlocking new evidence by utilising the fingerprint. However, the judgement deals with self-incrimination and does not address any privacy issues.
The right against self-incrimination approach alone may not be enough to resolve all concerns. Firstly, there may be varying levels of protection provided to different forms of password protections on digital devices; text- and pattern-based passcodes are inarguably protected under Art. 20(3) of the Constitution. However, the protection of biometrics-based passcodes relies upon the correct interpretation of the Kathi Kalu Oghad precedent. Secondly, Art. 20(3) only protects the accused in investigations and not when non-accused digital devices are acquired by LEAs and the passcodes of the devices demanded.
Therefore, considering the aforementioned points, it is pertinent to remember that the right against self-incrimination does not exist in a vacuum separate from privacy. It originates from the concept of decisional autonomy – the right of individuals to make decisions about matters intimate to their life without interference from the state and society. Puttuswamy I observed that decisional autonomy is the bedrock of the right to privacy, as privacy allows an individual to make these intimate decisions away from the glare of society and/or the state. This has heightened importance in this context as interference with such autonomy could lead to the person in question facing criminal prosecution. The SC in Selvi v Karnataka and Puttuswamy I has repeatedly affirmed that the right against self-incrimination and the right to privacy are linked concepts, with the court observing that the right to remain silent is an integral aspect of decisional autonomy.
In Virendra Khanna, the Karnataka High Court (HC) dealt with the privacy and self-incrimination concerns caused by LEAs compelling the disclosure of passwords. The HC brushes aside concerns related to privacy by noting that the right to privacy is not absolute and that an exception to the right to privacy is state interest and protection of law and order (para 5.11), and that unlawful disclosure of material to third parties could be an actionable wrong (para 15). The court’s interpretation of privacy effectively provides a free pass for the police to interfere with the right to privacy under the pretext of a criminal investigation. This conception of privacy is inadequate as the issue of proportionality is avoided, and the court does not attempt to ensure that the interference is proportionate with the outcome.
US courts also see the compelling production of passcodes as an issue of self-incrimination as well as privacy. In its judgement in Application for a Search Warrant, a US court observed that compelling the disclosure of passcodes existed at an intersection of the right to privacy and self-incrimination as the right against self-incrimination serves to protect the privacy interests of suspects.
Disclosure of passwords to digital devices amounts to an intrusion of the privacy of the suspect as the collective contents on the digital device effectively amount to providing LEAs with a method to observe a person’s mind and identity. Police investigative techniques cannot override fundamental rights and must respect the personal autonomy of suspects – particularly, the choice between silence and speech. Through the production of passwords, LEAs can effectively get a snapshot of a suspect’s mind. This is analogous to the polygraph and narco-analysis test struck down as unconstitutional by the SC in Selvi as it violates decisional autonomy.
As Sekhri noted, a criminal process that reflects the aspirations of the Puttuswamy judgement would require LEAs to first explain with reasonable detail the material which they wish to find in the digital devices. Secondly, they must provide a timeline for the investigation to ensure that individuals are not subjected to inexhaustible investigations with police roving through their devices indefinitely. Thirdly, such a criminal process must demand a higher burden to be discharged from the state if the privacy of the individual is infringed upon. These aspirations should form the bedrock of a system of judicial warrants that LEAs ought to be required to comply with if they wish to compel the disclosure of passwords from individuals. The framework proposed above is similar to the Virendra Khanna guidelines, as they provide a system of checks and balances that ensure that the intrusion on privacy is carried out proportionately; additionally, it would require LEAs to show a real requirement to demand access to the device. The independent eyes of a judicial magistrate provide a mechanism of oversight and a check against abuse of power by LEAs.
Conclusion
The criminal law apparatus is the most coercive power available to the state, therefore, privacy rights will become meaningless unless they can withstand it. Several criminal procedures in the country are rooted in colonial statutes, where the rights of the populace being policed were never a consideration; hence, a radical shift is required. However, post-1947 and Puttuswamy, the ignorance and refusal to submit to the rights of the population can no longer be justified and significant reformulation is necessary to guarantee meaningful protections to device owners. There is a need to ensure that the rights of individuals are protected, especially when the motivation for their infringement is the supposed noble intentions of the criminal justice system. Failing to defend the right to privacy in these moments would be an invitation for allowing the power of the state to increase and inevitably become absolute.
This article has been authored by Harikartik Ramesh, Student at National Law University, Delhi. This blog is a part of RSRR’s Right to Privacy and The Legality Of Surveillance series in association with the Centre for Internet and Society (CIS) initiated to bring forth discussion by experts on contemporary legal issues.
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