The smartphone encapsulates the deepest intimacies of its owner’s existence. It knows what one’s closest companion might not. From daily conversations and banter, social engagements, business associations and romantic relationships to health conditions, banking transactions, shopping choices, and food preferences to one’s most intimate fantasies, the smartphone knows it all. Given that the hand-held device holds within it a person’s whole universe, the risk of its contents being revealed to the State or anyone else has far-reaching implications.
The meteoric rise in the importance of privacy as a human right and in India, its recognition as a fundamental right, is attributable in no small measure to the overwhelming impact of technology in recent times. Technology has exposed the ordinary citizen to the loss of privacy and made her vulnerable to surveillance both by the State and private corporations.
Are mobile (cell) phones entitled to a more elevated protection of privacy given their extraordinary status as reservoirs of private and personal information? In the celebrated KS Puttaswamy case, the Supreme Court identified myriad different facets of privacy that included communicational privacy, associational privacy, informational privacy, decisional privacy, intellectual privacy and behavioural privacy. The right to protect from disclosure of the contents of one’s smartphone touches many of these different aspects of privacy.
In Riley vs California (2014), the United States (US) Supreme Court recognised that the expression “cellphone” is a misnomer since so much more than mere phone conversations take place on the phone. Chief Justice Roberts held: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of protection for which the Founders fought.”
The US Supreme Court also recognised that “modern cell phones are of great value for both lawful and unlawful purposes. They can be used in committing many serious crimes, and they present new and difficult law enforcement problems.” In Riley vs California, the US Supreme Court unanimously held that the police may search digital information on a cellphone seized from an arrested individual, but only with a warrant. There are exceptions, however, where exigencies may require dispensation with a warrant. Such exigencies include situations where there is a need to prevent the imminent destruction of evidence, to pursue a fleeing suspect, or to protect persons who are seriously injured or face the threat of imminent harm.
Under the Fourth Amendment of the US Constitution, which affords protection against unwarranted search and seizure, a warrant is required to specifically contain “the things to be seized”. The question arises as to whether a search warrant for the smartphone itself was excessively broad and disproportionate if the warrant failed to state with specificity, the particular items stored in the smartphone to be seized. A smartphone is likely to contain a range of different types of information. Can all of this be made the subject matter of a search in investigating a particular crime?
A recent judgment of the Karnataka High Court in Virendra Khanna vs State of Karnataka dealt with how mobile phone records may be investigated. The court held that while it cannot, suo motu, direct a party to furnish a password, passcode or biometrics to access smartphone records, an investigating officer can approach the court seeking necessary directions to provide a password for the search of a smartphone. Such a need may arise under emergent circumstances or during the regular course of investigation. In emergent circumstances, where it may not be possible for the investigating officer to obtain a warrant from a court of law, there must be reasonable grounds for believing that it is necessary to carry out such a search expediently and that unless such a search is carried out immediately, the evidence may be lost or that public harm may take place. There must be a recording in writing by the investigating officer in such cases specifying reasons for conducting such a search without a warrant.
If the search is carried out in the normal course of an investigation, then notice must be issued to the accused to produce the mobile phone, failing which a search warrant be obtained. While issuing a search warrant, the concerned court must indicate the role of the device in question in the crime, the nature of the search to be done and the place where the search has to be conducted.
In a situation where the accused does not part with the password to enable access to the smartphone despite a search warrant from the court concerned, the investigating agency would be at liberty to have the password broken into. Perhaps a better course of action would be to draw an adverse inference rather than to open up the entire record of the smartphone, which may throw up information, both relevant and irrelevant. Data found on a mobile phone would have to be proved independently in a trial and therefore, its collection cannot, according to the high court, fall foul of the law against self-incrimination.
The court also laid down guidelines for the sealing of the device upon its seizure so that the contents already stored on it cannot be tampered with subsequently. Nor can the contents be disclosed to third parties. There must be awareness of these guidelines to ensure that investigation takes place in a manner that does not compromise “the privacies of life”. Any loss of liberty can pass muster only if it is in accordance with the procedure established by law. Otherwise, it would fall foul of Article 21 of the Constitution.
Madhavi Goradia Divan is senior advocate and additional solicitor general, Supreme Court. The views expressed are personal
