Electronic Documents, Encryption, Cloud Storage and the Privilege Against Self-Incrimination

Authors Constantine Theophilopoulos

ISSN: 1996-2177
Affiliations: Associate Professor, School of Law, University of the Witwatersrand, Johannesburg
Source: South African Law Journal, Volume 132 Issue 3, 2015, p. 596 – 615


The techno-savvy cybercriminal’s easy internet access to encryption software and anonymous cloud servers, and the legal protection offered to such individuals by the privilege against self-incrimination, make it difficult for a state agency tasked with combatting cybercrime to monitor, intercept, or compel the disclosure of electronic documents containing incriminating content. The principal Act in this field, the Electronic Communications and Transactions Act 25 of 2002, is flawed in that it makes no reference to the relationship between general disclosure orders (in the form of Anton Piller orders or search and seizure warrants), the privilege against selfincrimination, and the compulsion of electronic documents stored on a computer hard drive or in the cloud. The purpose of this article is to suggest a number of substantive and procedural remedies which may assist in expunging the lacuna in the Act.