In today’s digital era, the right to privacy has taken on heightened importance and urgency. As individuals, we voluntarily divulge vast amounts of personal information through social media and various online platforms. Simultaneously, the government mandates the surrender of private data for access to essential services. This convergence of factors poses a severe threat to our privacy and security, particularly when the state wields immense control over our personal information.
Article 7 of the Constitution enshrines the fundamental right to life and liberty, which cannot be deprived except through due process of law. In the contemporary digital landscape, the concept of the right to life and liberty transcends mere physical existence; it encompasses the imperative to safeguard personal information from unlawful appropriation and exploitation. In this epoch of pervasive digital technology, where personal data assumes a pivotal role in the realization of the right to life and liberty, the greater the state’s capacity to access personal data without a well-defined legal basis, the more probable it becomes for citizens to be reduced to digital captives and detainees, susceptible to the state’s potential misuse of their personal information against them.
American jurisprudence has established that “Scrutiny of another’s trash is contrary to commonly accepted notions of civilized behaviour. A container which can support a reasonable expectation of privacy may not be searched, even on probable cause, without a warrant.” The courts have recognized that “A trash bag is a common repository for one’s personal effects” as “almost every human activity ultimately manifests itself in waste products. A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it.” Furthermore, it has been acknowledged that “A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Rummaging through a trash can divulge the target’s financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests.” In the contemporary digital era, mobile phones electronic devices and public records contain exponentially more personal information than discarded refuse. Consequently, these devices warrant heightened legal protections and access to them must be governed by a well-defined legal framework to safeguard individual privacy.
Recent attempts by state agencies, such as the justification for the use of CPMS (Cyber Patrol Monitoring System) by Audit Officers, exemplify the urgent need for comprehensive legal reform. If such powers genuinely existed, the requirement for court orders to obtain telephone records from telecommunication companies and financial details from banks would be rendered obsolete.
While law enforcement officers are justifiably empowered to seize custody of mobile devices belonging to arrested individuals to prevent potential tampering of evidence and to ensure the devices are powered off or the SIM cards removed to preserve all data for investigative purposes. Any search or seizure of electronic devices, such as phones, must be conducted in accordance with established legal procedures, including the issuance of search warrants and the presence of legal representatives or family members to ensure transparency and accountability.
The current legal framework, including the Penal Code and the Information and Communications Act, is woefully inadequate to address the emerging vulnerabilities faced by the public in the digital realm. Our legislators must undertake a comprehensive review of existing privacy laws, enacting robust and forward-looking legislation that fortifies the right to privacy and sets boundaries against unauthorized intrusion by the state.
Sonam Tshering
Lawyer, Thimphu
Disclaimer: The views expressed in this article are author’s own.