By Our Reporter
An arrest should not give police unrestricted access to someone’s digital life. Investigators may need phone records to establish a crime, identify accomplices or protect victims. But that need must have boundaries. Taking possession of a device and examining everything inside it are separate actions, and each requires justification.
Recent reports raise concerns about whether those boundaries are being respected. Durga Prasai claims police seized between 20 and 25 phones belonging to him, his wife and assistants. Police reportedly also took devices belonging to journalist Kishor Shrestha’s family and media organisation after failing to locate his usual phone. These accounts require scrutiny, including an explanation from investigators about each device’s connection to an alleged offence.
A smartphone holds years of conversations, photographs, banking information and movements. Searching it can expose a spouse’s medical concerns, a colleague’s confidential message or a source’s identity. Much of this belongs to people who are neither suspects nor witnesses. The intrusion therefore extends beyond the person arrested.
That is why “we are investigating” cannot settle the matter. Police should identify the evidence they seek, explain why they expect to find it and establish their legal authority. Otherwise, an investigation can drift into a search for anything embarrassing, politically useful or capable of supporting an unrelated allegation.
Article 28 of Nepal’s Constitution protects personal information, documents, data and correspondence, allowing interference only according to law. Privacy does not disappear when someone becomes a suspect. Nor should public dislike of an accused person determine how much protection they receive. Rights must apply equally to unpopular activists, powerful former officials and ordinary citizens.
Journalists’ devices require particular care. Seizing newsroom computers can interrupt publication and expose sources who approached reporters expecting confidentiality. Article 19(2) protects communication equipment against seizure because of published or broadcast material. This does not exempt journalists from criminal investigation, but authorities must distinguish evidence gathering from actions that obstruct reporting.
Nepal has already confronted excessive access to communications. Following Justice Rana Bahadur Bam’s killing in 2012, police collected extensive telephone and text records. The Supreme Court subsequently held that interference with such private information required a clear legal basis. That history should guide present practice, rather than remain a principle remembered only when another controversy erupts.
Authorities now need enforceable procedures for digital searches. Judicial authorisation should define the device, relevant information and period under examination. Where an immediate threat requires urgent preservation of evidence, officers should record their reasons and obtain prompt judicial review. Emergency exceptions must remain narrow.
Police should issue seizure receipts, document every transfer of a device and maintain records of who accesses its contents. Trained forensic personnel should extract relevant evidence while separating unrelated material. Devices should be returned promptly once continued retention becomes unnecessary, with clear rules governing copies.
Independent safeguards are essential for confidential journalistic material and communications with lawyers. Suspects and affected third parties need an accessible way to challenge excessive searches. Officers who leak private photographs or conversations should face investigation and consequences. A lawful seizure cannot justify public humiliation.
Clear limits also help police: focused searches produce evidence that courts can assess, while documented procedures reduce disputes about manipulation. Parliament should clarify the rules, police leadership should enforce them, and courts should intervene when boundaries are crossed. The test is whether investigators can explain and defend every intrusion. A phone may contain evidence of a crime. It also contains a life, and the state has no automatic claim to all of it.
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