Would you like your data to be stolen? Companies like Google, Facebook and Amazon do steal your data to create an algorithm that interests you and shows you things you like and advertisements you are most likely to click on. But what if the data being stolen is something more personal and the ones who are meant to be our guardians against crime are stealing this data?
Do police extract data from mobile phones? In India, police do extract data from mobile phones. In March 2022, a report by Media Nama was published. In that report, Police personnel from many states of India has admitted that Police do extract personal data from mobile phones in the course of their investigation. Anoop A Shetty, Deputy Commissioner of Police, Bengaluru City Police said, as reported by MediaNama, stated “People are more aware of their rights as a result of increased technology use and increased knowledge of legal processes or criminal investigations. So the traditional interrogation techniques are ineffective. People now utilise cell phones and other modern technology regularly. These digital trials serve as important, investigative evidence. Eyewitness testimony and forensic evidence were once our only sources of support, but today we have more reliable electronic evidence that was obtained using cyber forensic tools.” Israeli company Cellebrit’s UFED Cloud Analyzer, among others, is frequently used by the police to extract data from mobile phones. It is a strong cyber forensic tool that can access most smartphones and gadgets, even those made by Apple. For the US Federal Bureau of Investigation, Cellebrite once famously offered to break open an iPhone that belonged to a suspect in the San Bernardino bombing case. With the help of this programme, one can extract information from cloud-based sources such as social media, instant messaging, file storage, web pages, and more.
In the above-mentioned report, the Police accepted that they extract mobile phone data of the accused or witness in “investigative” cases and only in the course of investigation of any case. Moreover, incidents of police randomly checking people’s mobile phone for no concrete reason is no less frequent. One of these incidents was reported in Bengaluru wherein the Bengaluru Police randomly stopped people on the streets and demanded access to their mobile phones. Then, the Police looked for “drugs”-related discussions in these people’s private messaging apps. However, after this incident, the Bengaluru Police Commissioner Kamal Pant said that the police are expressly forbidden from conducting such arbitrary and haphazard phone checks. A similar incident took place in Hyderabad also.
What is the Law of the Land?
What’s the stand of the Criminal Procedure Code in it? Section 91 of the Code of Criminal Procedure states that if a court or an investigating officer deems any document or any other thing necessary for investigating purposes, then the such court or investigating officer can issue a summons or a written order respectively to any person in whose possession they think it is under. It further states that they can also mention the date and place to produce a such thing.
The mobile phone shall fall under “other things” mentioned in sub-section (1). Any court can issue a summons or any station house officer can issue written notice to produce a mobile phone which is necessary for the purpose of investigation, inquiry, or trial. Such summons or notice shall be made to the person in whose possession the mobile phone is believed to be. Moreover, the court has the authority to grant an officer a search warrant under section 93(1)(a) of the CrPC if it believes that the individual to whom summons or notices are given will not turn over the mobile phone. Section 93 of the CrPC states that if the court believes that the person summoned or ordered under Section 91 would not produce items mentioned in such summons of order, the court can issue a search warrant against that person. Further, it states that the court can identify any particular place to be searched by the police.
However, the Supreme Court ruled in the case of Shyamlal Choksi that the person accused of any offence is not included in the definition of “any person” in Section 91 of the Criminal Procedure Code and therefore no notice can be given to the accused. This judgment was pronounced in view of Article 20 (3) of the Constitution of India. Article 20 (3) states – “No person accused of any offence shall be compelled to be a witness against himself.”
Section 165 of CrPC also gives power to the police to extract data from people’s mobile phones. It states that if a police officer has a reason to believe that any particular thing is essential for the investigation of a case then he can order the search for such thing in any place within his jurisdiction. He could do so without any search warrant, however, grounds for his belief have to be made in writing. Provided that such a thing, in his opinion, cannot be otherwise obtained without undue delay.
It is clear from the bare reading of the above-mentioned section that an officer conducting an investigation may conduct a search after “recording in writing the basis of his belief” and describing what he is looking for if he has “reasonable grounds for thinking” that information for a case has to be “obtained without undue delay.” Under this section, the police officer need not issue written notice or court to issue summons to extract data from people’s mobile phones rather the police officer has to record reasonable grounds for his actions.
From the discussion, it can surely be observed that the police can extract data from anyone’s mobile phone provided that there has to be a written notice, or summons issued by the concerned court, or recording reasonable ground for the same. Thus, the police have to have any of the above-mentioned points in order to extract data from anyone’s mobile phone in any circumstances.
Author(s) Name: Prakhar Tiwari (Guru Ghasidas University, Bilaspur)