In the landmark judgment Justice K.S. Puttaswamy v. Union of India, the Supreme Court made clear that the state cannot intrude into personal privacy without meeting a three-part test. The intrusion must have a valid legal basis, pursue a legitimate state aim, and be proportionate to that purpose. In other words, the state can access private information only when the intrusion is necessary and no more extensive than required.

Yet India still has no single, codified law governing digital searches, seizures, and state surveillance. The Digital Personal Data Protection framework gives government agencies broad exemptions on grounds such as state security and public order. As a result, investigators continue to rely largely on general procedural powers, including Section 94 of the Bharatiya Nagarik Suraksha Sanhita (previously Section 91 of the Code of Criminal Procedure). Most discussions around this regulatory gap focus, understandably, on privacy and civil liberties. However, broad powers to access digital devices can affect more than personal information. They may also expose trade secrets, proprietary software, copyrighted source code, proprietary algorithms, confidential business records, and other commercial sensitive information that may have no connection to the investigation.

Three areas show why this matters in practice: (a) the exposure of trade secrets and proprietary data, (b) the treatment of copyrighted software and digital works, and (c) the lack of forensic safeguards designed with intellectual property in mind.

     1. Compromising Trade Secrets and Proprietary Data:

A digital seizure often captures more than personal communications Laptops, servers, and cloud repositories may also contain the core assets of a business or creative enterprise. For technology companies, research institutions, and creators, that can include trade secrets, proprietary algorithms, unpatented designs, and confidential business strategies.

Without a codified protocol that limits the scope of state access, law-enforcement agencies may create complete mirror images of storage devices. Those copies can sweep in commercially valuable information that is unrelated to the investigation, particularly where the governing framework does not require necessity and proportionality safeguards. Once the information enters state custody, there may be no clear confidentiality guarantee or adequate protection against unauthorised disclosure.

     2. Infringement on Software and Copyrighted Works

The same concern arises in digital forensic investigations involving databases and software repositories. Seizing a complete copy may expose copyrighted source code and other protected digital assets. If the law does not clearly limit the scope and duration of access, investigators may retain a wide view of the structure and contents of proprietary software systems.

From an intellectual property standpoint, unguided data collection can lead to unauthorised copying, disclosure, or mishandling of copyrighted material. Broad public-order exemptions from ordinary data-protection obligations may also leave creators with limited statutory remedies if their intellectual property is compromised during a criminal investigation.

     3. The Need for IP-Aware Forensic Protocols

India therefore needs a comprehensive statutory framework for digital searches and seizures conducted by law-enforcement authorities. To meet the constitutional test and protect privacy and intellectual property, the legal framework should include practical safeguards at every stage, including the collection, review, storage, sharing, and return of digital evidence, and ensure that access is lawful, necessary, and proportionate.

1. Targeted data extraction instead of blanket imaging: Investigating Officers in a criminal prosecution and Local Commissioners appointed in a civil case should extract only the data that is demonstrably relevant to the investigation, rather than copying entire devices. Technical tools such as cryptographic hash verification can then be used to confirm authenticity and integrity. Together, these measures would better reflect the requirements of necessity and proportionality.
2. Trade-secret confidentiality safeguards: The law should require proprietary information to be identified, segregated, securely stored, and accessible only to authorised persons. Where digital evidence contains commercially sensitive intellectual property, courts should also be able to review it in camera i.e. without the public, press, or outside observers present
3. Chain-of-custody accountability: Access to seized commercial digital assets should be logged, and every stage of their handling should be auditable. Unauthorised disclosure or misuse should attract clear statutory consequences.

Conclusion

India’s current, largely uncodified approach to state access to digital data may fall short of constitutional privacy standards and creates real risks for businesses, innovators, and creators. A clear law-enforcement data framework, grounded in the Puttaswamy principles of legality, necessity, and proportionality, would do more than protect individual rights. It would also reduce the risk that trade secrets and copyrighted material are misused or disclosed, and help build confidence in India’s digital innovation ecosystem.