Police raids targeting reporters working for Indian news portal NewsClick resulted in the seizure of around 250 electronic devices — including phones, hard disks and laptops — and even the passports of over 90 journalists whose homes were searched during the October operation.

None of the journalists whose devices were seized by the New Delhi police were given their devices' hash values, the digital equivalent of a fingerprint that changes if a device's contents have been tampered with, as required.

Some reporters said that no paperwork documenting the seizures was provided.

No safeguards for journalists

Police officers a year earlier raided the homes of editors working for another news portal, The Wire, removing phones, computers and iPads.

Hard disks from two computers used by other employees were also seized and the raiding teams reportedly sought and took passwords to official and personal email accounts.

Following the raids, the Foundation for Media Professionals filed public interest litigation at India's Supreme Court against what it called unnecessary interference by investigative agencies. 

In its initial hearing earlier this month, the court underlined that privacy is a fundamental right and found it "difficult to accept" the "all-within power" that investigative agencies have.

"It is a serious matter. These are media professionals who will have their own sources and other things. There must be some guidelines," the court observed.

The need for regulation

The unregulated powers to seize devices has triggered a debate with free speech activists and cyberlaw experts calling for due process and a need to update the laws allowing search and seizure by law enforcement agencies across India.

Apar Gupta, who heads the Internet Freedom Foundation, a digital rights advocacy group, pointed out that there is a vacuum in the law and the colonial policing practices permit the seizure of journalists' digital devices without safeguards or proportionality in India.

"This trend is particularly noticeable for independent journalism entities that focus on critical assessment of public interest on themes such as the growing authoritarianism in India, crony capitalism and human rights violations of minorities," Gupta told DW.

"We are living through odd and uneven times, where the instinct to control is swathed in a thick layer of opacity," Pamela Philipose, a media commentator who has written extensively on the subject told DW.

"The conspicuous rise in the targeting of journalists by the government points to wider anxiety that the narrative it has successfully created and furthered through co-opted corporate media is being undone by those journalists it targets as anti-national," Philipose added.

NewsClick has been fiercely critical of India's conservative government led by Narendra Modi.

In August, the New York Times published an investigative report alleging that the organization had received funds from US-based businessman Neville Roy Singham, who is accused of working closely with Beijing and financing Chinese propaganda internationally.

Soon after its publication, police raided homes of journalists who worked as staff or contributors for NewsClick.

What would a regulated framework look like?

Cyberlaw expert Pavan Duggal says the seizure of electronic evidence needs to be governed by a strict code of conduct.

"Journalists are also entitled to appropriate protection from disclosure of their systems. Devices only need to be picked up in accordance with the procedure established by law and not on the subjective whims and fancies of the law enforcement agencies," Duggal told DW.

Pranesh Prakash, co-founder of the Bangalore-based Centre for Internet and Society, goes one step further and says that a suspect has a constitutional right against self-incrimination.

"You cannot legally be required to reveal any potentially incriminating information to the police. This is not being 'above the law,' it is the law," Prakash told DW.

Prakesh said that digital evidence guidelines should also require that a process tracking the chain of custody should be implemented, as well as ensuring than digital evidence is not been tampered with and devices are not retained for longer than necessary.

"In all cases where on-disk data is sought, that specific data ought to be cloned, and the hash values for that be provided immediately to the device owners," said Prakash, who added that the law regarding what kinds of evidence can and can not be sought without a warrant.

"This is crucial to ensure that criminal investigations and trials are fair, that the police are not able to plant evidence without it being detected, and that criminal investigations are not fishing expeditions where the police proceed against political opponents first and then start looking for potential crimes later," he added.

M.K. Venu, a co-founder of The Wire whose devices were seized last year, said there is an urgent need for sound legal provisions.

"Otherwise, privacy as a constitutional value would cease to exist," he told DW.

DW transparency note: India's NewsClick news outlet was a DW local media partner until December 2022, and was republishing DW content throughout the first half of 2023.

Edited by Keith Walker