Mobile Phones and Criminal Investigations

By Abhinav Sekhri


[This post first appeared on the author’s blog, ‘The Proof of Guilt’.]

I’ve put out a short primer/paper (made with friends) explaining the basics about mobile phones and criminal investigations. This is meant to help convey the legal issues that arise in the context of the following: (i) seizure of a phone by police; (ii) police compelling the person to unlock the phone, and; (iii) police accessing the contents of a phone.

Broadly, the takeaways are:
  • Police have broad powers of search and seizure which they can use to seize a mobile phone during an investigation, which is treated just like any other object;
  • There is greater ambiguity in the law that might authorise regular police, and courts, to compel individuals to provide passcodes and/or open locked devices by using biometric ID;
  • There are no prior limits on the use of the seized phone and the kinds of content that might be accessed;
  • There are legal limits present under statutes that serve as avenues to restrain these powers. The misuse/abuse of these powers also threatens possible violations of the fundamental rights to privacy and that against compelled self-incrimination;
  • However, the value of legal tools to contest the seizure of mobile phones and/or any compulsion used by police in getting them unlocked is often lost due to the situational dynamics in which the law operates. The power differential between police and a witness/suspect inside a police station is simply too much to bear and results in most persons unlocking their devices. The myriad difficulties in holding police officers to account, and quickly, only make this worse.

To put it simply: The police can take away almost anyone’s phone if they think it might be useful to the investigation, see anything inside it without accountability, and the law confers potentially useful rights against compelled testimony which often don’t matter inside the confines of a police station.

At a time when a mobile phone is a close substitute for real life, the many problems posed by the status quo are not too difficult to imagine. For starters, the problems from ordinary life will obviously be replicated: investigating agencies will have to draw inferences from conversations and thus might impute criminal intent where none existed.

But, given the massive amounts of information floating on a mobile phone, they bring their unique problems to the table. For most people, real life is never squeaky clean, and so it is safe to imagine that their phones reflect this reality. So by having relaxed laws that permit the easy seizure of mobile phones, and having almost no legally defined limits on what the police can do with these devices once they’ve seized them, we create a situation where the police can go on a roving and fishing inquiry to find leverage against a person to either make her say things against her will.

The document suggests some avenues for reform, but there are no short-term fixes to what is only a reflection of a broader, systemic, malaise. Let me explain how.

Sir James Fitzjames Stephen thought that having a law that excludes confessions made to the police was necessary for India because for them “it is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil’s eyes than to go about in the sun hunting up evidence.” Amazingly, the law regulating investigations has changed little from Stephen’s time. The past 150 years have taught us that without drastically improving the resources for policing, mere legal rules can do little to stop coerced confessions/statements and improve the quality of investigations.

A police force that is short on money and staff, but pressed for time to deliver results, is always going to find shortcuts to give the public an answer. The risks of fallout are also minimal since any eventual unravelling of a case only happens many years after an investigation is completed, by which time nobody is around to blame. It is perhaps inevitable for the situation to get worse now, as mobile phones have meant that police don’t need that proverbial red pepper anymore.

[The author is a criminal lawyer based in New Delhi. This post was first published on his blog ‘The Proof of Guilt’.]


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