State compulsion of smartphone security features and the privilege against self-incrimination
Author: Constantine Theophilopoulos
Affiliations: BSc LLB (Wits) LLM LLD (SA); Associate Professor, Interim Director and supervising attorney, Law Clinic, University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 36 Issue 2, p. 282 – 303
There is currently a lacuna in statutory and case law about the legal nexus between smartphone technology in the form of password/code or biometric-locked smartphone security features and the privilege against self-incrimination. This paper examines whether a recipient of a cyber-warrant, subpoena, or other compelling order, may invoke the privilege against self-incrimination in the face of a state order compelling the production of a security feature in order to unlock a smartphone and forensically access stored incriminating data files as admissible relevant evidence at trial. This paper examines the legal nexus by critical reference to relevant South African legislation, comparative international law, the Fifth Amendment privilege, and the foregone conclusion doctrine as described by the USA Supreme Court in Fisher v United States, Hubbell v United States and other federal courts.