extend the scope of prevailing guidelines for forensic labs in Nepal and elaborates the procedure to
be observed by the law enforcement for examining digital evidences.
Issues of Necessity, Proportionality, and Judicial Warrant
There may be instances where law enforcement authorities' investigations into digital devices exceeded
the bounds of necessity, proportionality, and the requirement for a judicial warrant. Notably, Nepalese
laws do not explicitly provide for a judicial warrant in such investigations, rendering law enforcement's
actions somewhat arbitrary. While a judicial warrant is mandatory when obtaining call details and user
location from telecom operators, no such requirement exists for obtaining personal information from
social networking providers. Consequently, law enforcement agencies frequently access personal data
from platforms like Meta and X without proper procedural guidelines, potentially infringing on privacy
rights. Due to lack of proper procedural guidelines for the judicial authority or data controllers'
approval for such information, there have been instances where the investigation officials' act has been
beyond the necessity, being disproportionate and infringement on the privacy without the legislative
enactment.
Procedural Errors and Arbitrary Investigations
In a specific case of cheating, a suspect was arrested due to a complaint about a WhatsApp
conversation. During the investigation, the focus shifted arbitrarily, revealing an app related to
cryptocurrency trading on the suspect's device. As a result, a new case was initiated against the suspect
based on this discovery. While law enforcement authorities may have acted in good faith, their
procedural errors raise significant questions. Although as discussed above, Supreme Court has
emphasized the need to regulate the realization of digital evidence to prevent arbitrary investigations,
it has not been taken seriously and discussed for proper review. There is a widespread concept rooted
in the law enforcement officials that privacy approach cannot supersede the protection approach while
investigating serious offences. This scenario of individual officials working on the basis of their own
opinions and interpretations has been created due to the government's lack of attention towards
maintaining procedural fairness and preparing extensive guidelines for collection, processing,
submission and evaluation of digital evidence. The court has been often observed to have turned a
blind eye towards arbitrary approaches undertaken by the investigating authority, procedural flaws and
lack of proper procedural and technical resources in the court itself. This situation poses a perilous
threat to the entire criminal justice system of Nepal, therefore it is essential to create a framework
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