Searches and Device Seizures
Module 4: Surveillance of Journalists, Searches and Digital Device Seizures
Digital devices such as phones, cameras, laptops, and storage devices have become essential tools for journalists in conducting their work. They are used, for instance to conduct for research, recording, communicating with confidential sources and other journalists, and for publishing content. However, such devices often become subject to seizures and searches by authorities, in particular in situations perceived as sensitive, such as when covering protests(1) or at national borders(2). As civil society organisations are documenting growing number of seizures and (forensic) searches of journalists’ digital equipment,(3) safeguarding digital security remains an important factor to ensure the functioning of the press. Practical tips for journalists covering protests can be found here.
Through searches and seizures, authorities obtain access to protected materials, including the identity of journalistic sources, thus endangering their safety and creating a chilling effect. The search of mobile devices is particularly intrusive due to the quantity and the sensitivity of the data accessed. Such measures infringe on the right to privacy (Article 8 ECHR) and freedom of expression (Article 10 ECHR) and can only be justified if they meet the cumulative criteria of the so-called three-part test. In addition, the search of journalists’ home, workplace and the seizure of their material must be accompanied by adequate and effective procedural safeguards.(4)
The ECtHR has clarified that:
“journalists should enjoy a broad scope of protection, including a range of freedoms that are of functional relevance to the pursuit of their activities, such as: protection of confidential sources; protection against searches of professional workplaces and private domiciles and the seizure of materials, protection of news and information-gathering processes […]”(5)
Special attention must be paid to the protection of journalistic sources,(6) a principle which, in the words of the ECtHR, is “one of the cornerstones” of press freedom and essential to enable the press to fulfil its public-watchdog role.(7)
The ECtHR has applied these numerous cases, confirming for instance that the search of a journalist’s laptop at a border crossing violated Article 8 ECHR due to the lack of effective and adequate safeguards in Russian domestic legislation and practice.(8) In Sorokin v. Russia, the ECtHR found a violation of Article 10 ECHR after a journalist’s flat and his electronic devices, which contained information related to his work, were searched without any procedural safeguards to protect the confidentiality of his sources.(9) In Nagla v. Latvia, the ECtHR stressed that:
“the right of journalists not to disclose their sources cannot be considered a mere privilege to be granted or taken away depending on the lawfulness or unlawfulness of their sources, but is part and parcel of the right to information, to be treated with the utmost caution.”(10)