Biometric Encryption of Smart Devices and the Prohibition against Self-incrimination in Criminal Procedure. Old Guarantees in the New World

Abstract

Abstract Whether we realize it or not, our smartphones/tablets store an extremely rich amount of information about ourselves, our daily activities, secrets, preferences, and plans. To talk about professional or purely private matters, we use communicators. For this data, modern technology gives us a sense of security. We are reassured by encryption based on alphanumeric codes. But remembering passwords that are too complex is inconvenient. That’s why we often use biometric security - fingerprint readers or facial recognition. Not only for the unlocking of the device, but also for the effective use of many applications (e.g. mobile banking). But evidence of a crime could be a file, document, photo or conversation stored only on our device. Our crime. If law enforcement demands that we unlock the device, what should we do? Looking at modern legal solutions in this area, the international standard of not incriminating oneself is clear - we cannot be forced to reveal information stored only in memory (e.g. passcode). However, when it comes to whether we are required to place our thumb on a reader or look into a Face id camera, the law is silent or extremely inconsistent. Paradoxically, the technology that makes our data more secure seems to have the opposite effect of diminishing our fundamental rights as potential suspects. The most troubling threads in this area will be addressed in this paper. Where do we stand? What’s next for our fair trial rights?