It is not uncommon to hear that when any person gets arrested irrespective of the severity of the accusations or crimes one is suspected of the first thing they lose is their mobile phones. The issue here is that can the law enforcement agencies also ask the detainees to open their phones or hand over their passwords without assigning reason and without a court warrant if law enforcement officers ask the detainee? Article 7 Section 19 of our Constitution guarantees every person the right to privacy and against any “arbitrary or unlawful interference of oneself, family, home or correspondence nor to unlawful attacks on the person’s honour and reputation.”
Records already revealed that there are 465,085 users for Bhutan Telecom and 295,475 for TashiCell. The right to privacy generally encompasses and protects the personal intimacies of the home, the family, marriage, etc.” Today, our mobile phones have become most valued and priced property in everyone’s life because the modern phones can “store millions of pages of text, thousands of pictures, or hundreds of videos” and other personal stuff and any state intrusion into personal phones could infringe on the privacy.
In a famous case of California v. Greenwood, the court said even in the case of a garbage bag, a search warrant must be there because, the trash bag “is a common repository for one’s personal effects” which can reveal intimate details about sexual practices, health, personal hygiene, financial, professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests, etc. In the modern day with the increasing use of phones and reliance on technologies, our phones contain far more information than trash bags. For example, our “cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. The phone’s capacity allows even just one type of information to convey far more than previously possible and the data on the phone can date back for years. This has “several interrelated privacy consequences.”
However, the current laws are silent on the requirement of search warrant for phones. Section 176 of the Civil and Criminal Procedure Code, 2001 (CCPC) authorizes the police officer the right to take control of possession and seize any weapon, contraband or any other evidence of an offence carried on his/her person.” Our phones “cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape nor its data will endanger no one.” Section 172 and 373 of CCPC requires that search warrant be necessary to search private premises, buildings, and many other areas. This is because “a person’s home receives the highest level of protection as our home is primarily founded on the belief that the home is the most private of places.” But now, our phones have become more private than our homes.
The right to privacy plays a pivotal role in “the development of individuality and consciousness of individual choice in life particularly in democratic societies, since qualities of independent thought, diversity of views, and non-conformity are considered desirable traits for individuals.” The state should not enjoy the unfettered authority to get access to any detainee’s phones. It is time that our legislature recognizes the importance of right to privacy particularly in case of phones and amend CCPC by inserting a requirement for warrant to search phones.
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own.