[This post has been authored by Shivang Tandon, a fourth year student at Faculty of Law, Banaras Hindu University.]
The ‘self-incrimination’ doctrine is an indispensable part of the criminal law jurisprudence of a civilized nation. Article 20(3) of the Indian Constitution and the Fifth Amendment of the Constitution of the United States provide protection against self-incrimination.
In Doe v. United States (hereinafter ‘Doe’), the U.S. Supreme Court held that the Fifth Amendment protects against the ‘testimonial compulsion’ i.e. one cannot be compelled to divulge factual assertions or information which is incriminatory in nature. However, physical evidence like fingerprints, blood samples, handwriting specimens and hair samples etc. is non-testimonial, as it doesn’t require the person to disclose “any knowledge he might have”. The Forgone conclusion doctrine is an exception to the rule against ‘self-incrimination’. It postulates that the government can force an accused to provide anything when it fairly knows the existence, authenticity and possession of the evidence.
An eleven-judge bench of the Indian Supreme Court in State of Bombay v. Kathi Kalu Oghad (hereinafter ‘Oghad’) held that Article 20(3) of the Indian Constitution protects against personal testimony which depends upon a person’s volition. It concluded that Article 20(3) doesn’t protect thumb impressions, or an impression of the palm, feet or fingers.
Applicability Of Doe and Oghad In The Era Of Technology
In Commonwealth of Virginia v. David Charles Baust, the court faced a situation whether an accused could be compelled to unlock his smartphone with a “pass code or fingerprint”. Following the reasoning laid down in Doe, the court reached the conclusion that a person cannot be compelled to provide the pass code as it would amount to “divulging through his mental processes”, but he could be forced to unlock the smartphone using his fingerprint as this is ‘non-testimonial evidence’. Subsequently, in State v. Diamond, Supreme Court of Minnesota recognised that compelling an accused to unlock a smartphone through his fingerprint is not violative of right against self-incrimination.
A divergent view was taken by the U.S. District Court for the Northern District of Illinois Eastern Division in In re Application for a Search Warrant, wherein it was held that compelling a person to unlock the phone with biometrics would trigger the protection of the Fifth Amendment. A similar observation was made in In the matter of the search of a residence in Oakland, California. In November 2019, the U.S. District Court for the Northern District of Illinois Eastern Division in United States v. Barrera recognised that compelled act of scanning the fingerprint to unlock a device is a ‘non-testimonial’ act.
Inconsistent approaches opted by different lower courts of the U.S. have created a conundrum. This issue is yet to be settled by the U.S. Supreme Court. So far, Indian courts have not faced such situation as have been in the U.S. If the Oghad framework were to be followed, then they would reach the conclusion that compelled decryption is not contrary to the ‘self-incrimination’ doctrine.
Compelled Decryption: Incongruous To Criminal Law Jurisprudence
Treating biometrics as ‘non-testimonial’ to unlock the digital devices is incongruous to criminal law jurisprudence. The Supreme Courts of U.S. and India could have never anticipated the technological advancement to such an extent where compelling a person to unlock a smartphone through biometrics would encroach upon his right to remain silent. The U.S. courts following the Doe reasoning have consistently focused on the means adopted for unlocking the smartphone and ignored the end result. Emphasis has to be placed on the fact that it is the end result which could turn out to be incriminatory. There appears to exist no rational basis to differentiate between the passcode and biometrics to unlock phones, as both of them serve the same purpose. A person with the touch of biometrics testifies the control over the phone and its contents. It is not similar to giving biometrics for the comparison with the existing physical evidence.
Foregone conclusion doctrine could only be applicable in the situation where the government reasonably knows about the existence of specific or particular evidence. Unlocking of mobile phones undoubtedly would reveal more potential information, which could have never been reasonably anticipated by the investigating authorities. According to Brett Max Kaufman of the American Civil Liberties Union, “forcing an individual to decrypt data on a digital device will always be testimonial regardless of what government already knows”.
In Griswold v. Connecticut, Justice Douglas recognised a zone of privacy in the self-incrimination clause. This has also been recognised by the Indian Supreme Court in Selvi v. State of Karnataka. Technology nowadays allows an individual to store data and sensitive information on mobile phones which cannot even be found in a home. Hence, an arbitrary intrusion by the state to access the contents of mobile phones would necessarily trigger the protection of the Fourth Amendment of the U.S. Constitution and Article 21 of the Indian Constitution. It is to be remembered that consent is the very essence of ‘right of privacy’ and compelled decryption is antithetical to it. A mere advancement in technology shouldn’t affect the protection of constitutionally guaranteed rights. Compelled decryption would ultimately lead to the disclosure of sensitive information. The password – be it biometric or alpha-numeric – is private in nature as it is unique to its creator and not known to others.
Technological advancement now allows an individual to unlock smartphone through face ID. Applicability of the Doe and Oghad framework to this would mean an accused could be compelled to unlock the smart phone through face ID as it doesn’t require any divulgence of information. Therefore, strict application of the aforementioned framework in contemporary time is patently absurd. The relationship between law and technology never remains static. As technology advances, the applicability of the law has to change in a similar manner.