PROCURING DIGITAL EVIDENCE AND THE METAPHOR PROBLEM: ASSESSMENT OF INDIA IN COMPARISON TO USA, CANADA AND UK

Abstract

Search and Seizure are a part and parcel of investigations, and the State has legitimate interest in detecting and preventing crimes. Such powers during investigations enable the law enforcement to effectively produce evidence for prosecution and obtain convictions. The development of technology, however, has disrupted this seemingly seamless process of investigation. This is mainly because digital evidence is inherently different from traditional documentary evidence. This fundamental difference demands a deviation from traditional conceptions of privacy and the need to conceptualise new developments such as reasonable expectations of one’s anonymity and control of customer information vis-à-vis a third party and many other implications on privacy that digital evidence presents. Instances in which the State could obtain data and the criminal procedure applicable would determine whether such intrusion would be reasonable intrusion or not. India’s jurisprudence on privacy itself is still in the stage of its infancy. Therefore, it is relevant and necessary to ascertain and analyse how other jurisdictions such as USA, Canada and the UK have conceptualised privacy in light of these new developments and managed to balance the competing rights of an individual and the legitimate state interest. This paper aims to ascertain the effectiveness and the shortcomings of the existing procedure in India to procure digital evidence in comparison to the principles and procedure existing in USA, Canada and UK.