Law in the Internet Society	View r3 > r2 > r1
Main AmLegalHist CompPrivConst EngLegalHist LawContempSoc LawNetSoc TWiki

 NinniSusanThomasSecondEssay 3 - 17 Jan 2022 - Main.NinniSusanThomas
 Line: 1 to 1
  
   META TOPICPARENT    name="SecondEssay" 
 Changed: 
<
< 
>
> 
  
 Changed: 
<
<  Paper Title The Right Against Self-Incrimination in the Digital Age 
>
>  The Right Against Self-Incrimination in the Digital Age in India 
  
 Deleted: 
<
< -- By NinniSusanThomas - 07 Jan 2022
  
 Changed: 
<
< Mobile phones almost being an extension of our lives, with it tracking every conversation, expenditure, location,  can act as the pivotal part if one was to be involved in a criminal investigation. The question of whether a person can be forced to hand over passcodes of their electronic devices that could lead to self-incriminating information has been discussed in recent times in both the United States and India. It raises very interesting questions surrounding the right against self-incrimination and the right to privacy. 
 Current scenario in the United States 
>
> Mobile phones have become extensions of our lives.  In a criminal investigation, they can be used to track conversations, expenditure, location, and movement, and can become pivotal to the case against an accused.  In this context, the question of whether a person can be forced to hand over passcodes of their electronic devices, which could lead to self-incriminating information being recovered from those devices, is being increasingly discussed in India. Directly and indirectly, the issue has arisen in multiple cases. Legally, it raises intricate questions at the interface of the right against self-incrimination and the right to privacy. 
  
 Deleted: 
<
<   
In the United States, relying on the foregone conclusion doctrine (Fisher v. United States), it may be argued that as the contents of the phones of accused would already be known to the investigating authorities, forcing them to give passwords of their phones cannot be seen as a violation of their right against self-incrimination. This question of law, wherein the extension of the right under the Fifth Amendment to not provide a phone’s password is pending in an appeal to the Supreme Court in Andrews v. New Jersey. There have been divergent views in multiple State Supreme Courts as well. 
  
 Added: 
>
>  Reality around law enforcement 
  
 Added: 
>
>  Although, in principle, the right against self-incrimination and the right to privacy are strongly established in Indian constitutional jurisprudence, a lack of consensus with respect to the scope of these rights, as well as the application of the law and practical issues with law enforcement, makes it very difficult for individuals to assert these rights. To start with, any assertion of constitutional rights by an accused person runs up against the very wide powers of search and seizure that the Indian police enjoy under the Code of Criminal Procedure. Rooted in a colonial, law-and-order logic that has never been challenged in a sustained way, the result of this is that on the ground, the police can exercise their powers without significant judicial oversight or scrutiny.  Recently, the Hyderabad police stopped people on the road to check their phones at random supposedly in an effort to crack down on narcotics and went through their Whatsapp conversations and calls to look for words such as “drugs”. So in India, it is not just persons accused of crimes whose privacy is violated by the police but also citizens on the road who are simply passing by a police officer who decides a crime may be committed by you, without any legal backing. Critique against this action by the police was simply justified by commenting that police are allowed to check any electronic device to curb suspicious activity. As the value of privacy is generally deemed next to nothing in India, such blatant violations by the police do not generally lead to any response from the judiciary and people tend to comply with the high-handedness of the police. 
  
 Changed: 
<
<  Context in India and current situation 
>
> This practical power enjoyed by the police is further buttressed by the interpretive vagueness within Indian law on self-incrimination, which creates a grey zone around enforcement and - especially in a country such as India, where the rule of law faces many challenges - enures to the benefit of State agencies. In particular, there is little clarity in law about whether compelling a person to open their electronic devices for investigating authorities breaches the right against self-incrimination.
  
 Deleted: 
<
<   
Article 20(3) of the Constitution of India guarantees the right against self-incrimination. Over the years, the Indian Supreme Court’s judgments have provided different - and even conflicting - rationales for this right. These justifications can be broadly grouped into two categories: crime-control justifications and due process justifications. Crime-control justifications view the right against self-incrimination as instrumental towards the criminal law’s goal of uncovering the truth and punishing the guilty. According to this justification, forcing people to incriminate themselves will, more often than not, yield false testimony and lead criminal investigations astray. Due process justifications, on the other hand, view the right against self-incrimination to be part of a broader panoply of criminal procedure safeguards aimed at preserving the dignity of the individual, and maintaining a balance of power between the individual and the State. 
  
 Changed: 
<
< The Indian Supreme Court has gone back and forth between these two justifications. The exact text of Article 20(3) reads: “no person accused of an offence shall be compelled to be a witness against himself.” In Kathi Kalu Oghad, the Supreme Court considered the question of whether compulsory taking of fingerprints and handwriting samples were hit by the bar against self-incrimination. The Court held that they were not. What weighed with the Court, among other things, was that fingerprints (and, to a lesser extent, handwriting samples) could not be altered by an individual at will. Consequently, whether or not these samples were coerced from an individual, their intrinsic qualities would remain unchanged. It can be clearly seen that this reasoning fits well within the crime-control justification: linking the right against self-incrimination to an individual’s ability (or lack thereof) to alter a piece of evidence directly flows from a primary concern about the goal of criminal law being to determine truth and punish the guilty.
>
>  Law against self-incrimination and its limitations 
  
 Changed: 
<
< On the other hand, in Selvi v State, the Supreme Court held that the compulsory taking of a lie-detector test, brain mapping (HEAP) test, and narco-analysis - all interrogation techniques - were all unconstitutional. In the course of its analysis, the Court did not ask about the alterability or mutability of the evidence (a brain scan, for example, would fall well within the unalterability paradigm), but focused instead on the right to mental privacy, and read Article 20(3) along with Article 21 (right to life and personal liberty) of the Indian Constitution.
>
> While Article 20(3) of the Indian Constitution provides the right against compelled self-incrimination, judgments have limited it to “testimonial compulsion”, which means that investigating authorities can compel one to give physical evidence such as fingerprints, DNA, blood. At the same time, the Supreme Court of India has also held that documentary evidence constitutes part of “testimony” within the meaning of the right, and requiring a person to produce documentary evidence is tantamount to compelling them to be a “witness against themselves.” This creates the “grey area” referred to above, where the contents on one’s device might be protected by Article 20(3), but the method of obtaining them (a fingerprint or a passcode) might not - a grey area that, for the reasons explained above, benefits the State. The lack of clarity is because the Court has - as yet - failed to set down a clear rationale for the right against self-incrimination. In some judgments, it has hinted that the purpose of the right is to facilitate the discovery of truth (a rationale that would enable judges to interpret ambiguities in favour of law-enforcement), while in other cases it has observed that the purpose is to protect an individual’s due process rights, and maintain the balance of power between the individual and the State (including, crucially, protecting an individual’s mental privacy). An extension of this logic would cover both the contents of the device and the means for obtaining them - however, again, in the absence of a judgment squarely on the point, it is very difficult to stop the police until after the fact.   
  
 Changed: 
<
< There is thus a tension in Indian jurisprudence between the crime control and due process justifications of the right against self-incrimination. Whether the right, thus, protects data recovered from an individual’s personal mobile phone, or other device, in the course of investigation, depends on which of these justifications is held to be the correct understanding of Article 20(3). Under the due process justification, a person should be entitled to refuse to provide their password to the police during the investigation. Under the crime control justification, on the other hand, this refusal will be more difficult to defend.  
>
> This lack of clarity is further muddled by conditions being provided by judges in some cases where bail is granted directing the accused to provide access to all devices, although this is treated in the light of cooperating with the investigation. As the legal field is not clear on whether an individual being compelled to provide her password during the course of an investigation is against her right against self-incrimination and due to the overarching fear of the wrath of the police in not cooperating with the investigating, coupled with a general lack of awareness of one’s legal rights, most people allow the police access to their phones immediately and hand over possibly incriminating information. It is also not a practice in India for lawyers to be allowed during questioning of their clients- this leads to the police being able to exert pressure on them to give up their passwords or biometric information without being able to consult their lawyers. So while the law may provide protections against self-incrimination and for privacy, these will not matter when confronted by the police. 
  
 Added: 
>
>  Conclusion 
  
 Added: 
>
> While better clarity on law is certainly a factor that might ameliorate the concerns atleast for a certain class of society so as to be able to assert their rights strongly, for the larger section of India, more practical concerns related to policing must be solved such as resource-crunches of the police force during investigations and transparency in police stations so that their right to privacy and against self-incrimination is not routinely violated by law enforcement agencies. 
  
 Deleted: 
<
<  Conclusion 
  
 Deleted: 
<
< The questions of whether forcing a person to provide their password or a fingerprint to allow investigating authorities to access their electronic devices is akin to being forced to give their DNA or undergo polygraph testing, which is clearly a violation of their privacy, will have to be debated further in both these jurisdictions. 
  
 Deleted: 
<
<  
  The draft clears the space, as a first draft should: we know what the issue is.  But nothing substantive was said here: some cases involving the general principle were mentioned, upon which it is solemnly concluded that the decision in future cases will depend on what the judges think.

  But there are no real cases.  It might be useful in coming to grips with the substantive issues to ask why.  Here the apparent formal parity of Indian and US law cannot be maintained.  The secrets of the poor are discovered in India by force; in the US, by the automated or nearly-automated cooperation of the intermediaries.  Search warrants and subpoenas secure what forensics on seized phones don't provide.  

  To see an example of the alternate outcome, take a backward society with no significant protection for individual civil liberties: England.  The mandatory surrender of mobile phones by rape complainants has played a significant role in deterring complaints and in giving prosecutors reason to decline cases, two of the factors in bringing about the de facto decriminalization of rape in the statelet.   

  So a slightly broader effort to understand legal and social context will provide in the next draft the improvement it needs.
  



You are entitled to restrict access to your paper if you want to.  But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
 

 #Set ALLOWTOPICVIEW = TWikiAdminGroup, NinniSusanThomas
  #Set DENYTOPICVIEW = TWikiGuest
 

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.
  \ No newline at end of file
 Added: 
>
> 
  \ No newline at end of file
    META TOPICPARENT    name="SecondEssay"
-   META TOPICPARENT
+ name="SecondEssay"
-<
<
->
>
-<
<
+ Paper Title The Right Against Self-Incrimination in the Digital Age
->
>
+ The Right Against Self-Incrimination in the Digital Age in India
-<
<
+-- By NinniSusanThomas - 07 Jan 2022
-<
<
+Mobile phones almost being an extension of our lives, with it tracking every conversation, expenditure, location,  can act as the pivotal part if one was to be involved in a criminal investigation. The question of whether a person can be forced to hand over passcodes of their electronic devices that could lead to self-incriminating information has been discussed in recent times in both the United States and India. It raises very interesting questions surrounding the right against self-incrimination and the right to privacy. 
 Current scenario in the United States
->
>
+Mobile phones have become extensions of our lives.  In a criminal investigation, they can be used to track conversations, expenditure, location, and movement, and can become pivotal to the case against an accused.  In this context, the question of whether a person can be forced to hand over passcodes of their electronic devices, which could lead to self-incriminating information being recovered from those devices, is being increasingly discussed in India. Directly and indirectly, the issue has arisen in multiple cases. Legally, it raises intricate questions at the interface of the right against self-incrimination and the right to privacy.
-<
<
+In the United States, relying on the foregone conclusion doctrine (Fisher v. United States), it may be argued that as the contents of the phones of accused would already be known to the investigating authorities, forcing them to give passwords of their phones cannot be seen as a violation of their right against self-incrimination. This question of law, wherein the extension of the right under the Fifth Amendment to not provide a phone’s password is pending in an appeal to the Supreme Court in Andrews v. New Jersey. There have been divergent views in multiple State Supreme Courts as well.
->
>
+ Reality around law enforcement
->
>
+ Although, in principle, the right against self-incrimination and the right to privacy are strongly established in Indian constitutional jurisprudence, a lack of consensus with respect to the scope of these rights, as well as the application of the law and practical issues with law enforcement, makes it very difficult for individuals to assert these rights. To start with, any assertion of constitutional rights by an accused person runs up against the very wide powers of search and seizure that the Indian police enjoy under the Code of Criminal Procedure. Rooted in a colonial, law-and-order logic that has never been challenged in a sustained way, the result of this is that on the ground, the police can exercise their powers without significant judicial oversight or scrutiny.  Recently, the Hyderabad police stopped people on the road to check their phones at random supposedly in an effort to crack down on narcotics and went through their Whatsapp conversations and calls to look for words such as “drugs”. So in India, it is not just persons accused of crimes whose privacy is violated by the police but also citizens on the road who are simply passing by a police officer who decides a crime may be committed by you, without any legal backing. Critique against this action by the police was simply justified by commenting that police are allowed to check any electronic device to curb suspicious activity. As the value of privacy is generally deemed next to nothing in India, such blatant violations by the police do not generally lead to any response from the judiciary and people tend to comply with the high-handedness of the police.
-<
<
+ Context in India and current situation
->
>
+This practical power enjoyed by the police is further buttressed by the interpretive vagueness within Indian law on self-incrimination, which creates a grey zone around enforcement and - especially in a country such as India, where the rule of law faces many challenges - enures to the benefit of State agencies. In particular, there is little clarity in law about whether compelling a person to open their electronic devices for investigating authorities breaches the right against self-incrimination.
-<
<
+Article 20(3) of the Constitution of India guarantees the right against self-incrimination. Over the years, the Indian Supreme Court’s judgments have provided different - and even conflicting - rationales for this right. These justifications can be broadly grouped into two categories: crime-control justifications and due process justifications. Crime-control justifications view the right against self-incrimination as instrumental towards the criminal law’s goal of uncovering the truth and punishing the guilty. According to this justification, forcing people to incriminate themselves will, more often than not, yield false testimony and lead criminal investigations astray. Due process justifications, on the other hand, view the right against self-incrimination to be part of a broader panoply of criminal procedure safeguards aimed at preserving the dignity of the individual, and maintaining a balance of power between the individual and the State.
-<
<
+The Indian Supreme Court has gone back and forth between these two justifications. The exact text of Article 20(3) reads: “no person accused of an offence shall be compelled to be a witness against himself.” In Kathi Kalu Oghad, the Supreme Court considered the question of whether compulsory taking of fingerprints and handwriting samples were hit by the bar against self-incrimination. The Court held that they were not. What weighed with the Court, among other things, was that fingerprints (and, to a lesser extent, handwriting samples) could not be altered by an individual at will. Consequently, whether or not these samples were coerced from an individual, their intrinsic qualities would remain unchanged. It can be clearly seen that this reasoning fits well within the crime-control justification: linking the right against self-incrimination to an individual’s ability (or lack thereof) to alter a piece of evidence directly flows from a primary concern about the goal of criminal law being to determine truth and punish the guilty.
->
>
+ Law against self-incrimination and its limitations
-<
<
+On the other hand, in Selvi v State, the Supreme Court held that the compulsory taking of a lie-detector test, brain mapping (HEAP) test, and narco-analysis - all interrogation techniques - were all unconstitutional. In the course of its analysis, the Court did not ask about the alterability or mutability of the evidence (a brain scan, for example, would fall well within the unalterability paradigm), but focused instead on the right to mental privacy, and read Article 20(3) along with Article 21 (right to life and personal liberty) of the Indian Constitution.
->
>
+While Article 20(3) of the Indian Constitution provides the right against compelled self-incrimination, judgments have limited it to “testimonial compulsion”, which means that investigating authorities can compel one to give physical evidence such as fingerprints, DNA, blood. At the same time, the Supreme Court of India has also held that documentary evidence constitutes part of “testimony” within the meaning of the right, and requiring a person to produce documentary evidence is tantamount to compelling them to be a “witness against themselves.” This creates the “grey area” referred to above, where the contents on one’s device might be protected by Article 20(3), but the method of obtaining them (a fingerprint or a passcode) might not - a grey area that, for the reasons explained above, benefits the State. The lack of clarity is because the Court has - as yet - failed to set down a clear rationale for the right against self-incrimination. In some judgments, it has hinted that the purpose of the right is to facilitate the discovery of truth (a rationale that would enable judges to interpret ambiguities in favour of law-enforcement), while in other cases it has observed that the purpose is to protect an individual’s due process rights, and maintain the balance of power between the individual and the State (including, crucially, protecting an individual’s mental privacy). An extension of this logic would cover both the contents of the device and the means for obtaining them - however, again, in the absence of a judgment squarely on the point, it is very difficult to stop the police until after the fact.
-<
<
+There is thus a tension in Indian jurisprudence between the crime control and due process justifications of the right against self-incrimination. Whether the right, thus, protects data recovered from an individual’s personal mobile phone, or other device, in the course of investigation, depends on which of these justifications is held to be the correct understanding of Article 20(3). Under the due process justification, a person should be entitled to refuse to provide their password to the police during the investigation. Under the crime control justification, on the other hand, this refusal will be more difficult to defend.
->
>
+This lack of clarity is further muddled by conditions being provided by judges in some cases where bail is granted directing the accused to provide access to all devices, although this is treated in the light of cooperating with the investigation. As the legal field is not clear on whether an individual being compelled to provide her password during the course of an investigation is against her right against self-incrimination and due to the overarching fear of the wrath of the police in not cooperating with the investigating, coupled with a general lack of awareness of one’s legal rights, most people allow the police access to their phones immediately and hand over possibly incriminating information. It is also not a practice in India for lawyers to be allowed during questioning of their clients- this leads to the police being able to exert pressure on them to give up their passwords or biometric information without being able to consult their lawyers. So while the law may provide protections against self-incrimination and for privacy, these will not matter when confronted by the police.
->
>
+ Conclusion
->
>
+While better clarity on law is certainly a factor that might ameliorate the concerns atleast for a certain class of society so as to be able to assert their rights strongly, for the larger section of India, more practical concerns related to policing must be solved such as resource-crunches of the police force during investigations and transparency in police stations so that their right to privacy and against self-incrimination is not routinely violated by law enforcement agencies.
-<
<
+ Conclusion
-<
<
+The questions of whether forcing a person to provide their password or a fingerprint to allow investigating authorities to access their electronic devices is akin to being forced to give their DNA or undergo polygraph testing, which is clearly a violation of their privacy, will have to be debated further in both these jurisdictions.
-<
<
+  The draft clears the space, as a first draft should: we know what the issue is.  But nothing substantive was said here: some cases involving the general principle were mentioned, upon which it is solemnly concluded that the decision in future cases will depend on what the judges think.

  But there are no real cases.  It might be useful in coming to grips with the substantive issues to ask why.  Here the apparent formal parity of Indian and US law cannot be maintained.  The secrets of the poor are discovered in India by force; in the US, by the automated or nearly-automated cooperation of the intermediaries.  Search warrants and subpoenas secure what forensics on seized phones don't provide.  

  To see an example of the alternate outcome, take a backward society with no significant protection for individual civil liberties: England.  The mandatory surrender of mobile phones by rape complainants has played a significant role in deterring complaints and in giving prosecutors reason to decline cases, two of the factors in bringing about the de facto decriminalization of rape in the statelet.   

  So a slightly broader effort to understand legal and social context will provide in the next draft the improvement it needs.
  



You are entitled to restrict access to your paper if you want to.  But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" character on the next two lines:
 

 #Set ALLOWTOPICVIEW = TWikiAdminGroup, NinniSusanThomas
  #Set DENYTOPICVIEW = TWikiGuest
 

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.
 \ No newline at end of file
->
>
 \ No newline at end of file

NinniSusanThomasSecondEssay 2 - 07 Jan 2022 - Main.EbenMoglen

    META TOPICPARENT    name="SecondEssay"
-   META TOPICPARENT
+ name="SecondEssay"
-<
<
+It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles.  The headings below are there to remind you how section and subsection titles are formatted.
  Paper Title The Right Against Self-Incrimination in the Digital Age
-<
<
+ Subsub 1
-<
<
+ Subsub 2
->
>
+ Conclusion
->
>
+The questions of whether forcing a person to provide their password or a fingerprint to allow investigating authorities to access their electronic devices is akin to being forced to give their DNA or undergo polygraph testing, which is clearly a violation of their privacy, will have to be debated further in both these jurisdictions.
-<
<
+ Conclusion
->
>
+  The draft clears the space, as a first draft should: we know what the issue is.  But nothing substantive was said here: some cases involving the general principle were mentioned, upon which it is solemnly concluded that the decision in future cases will depend on what the judges think.

  But there are no real cases.  It might be useful in coming to grips with the substantive issues to ask why.  Here the apparent formal parity of Indian and US law cannot be maintained.  The secrets of the poor are discovered in India by force; in the US, by the automated or nearly-automated cooperation of the intermediaries.  Search warrants and subpoenas secure what forensics on seized phones don't provide.
-<
<
+ The questions of whether forcing a person to provide their password or a fingerprint to allow investigating authorities to access their electronic devices is akin to being forced to give their DNA or undergo polygraph testing, which is clearly a violation of their privacy, will have to be debated further in both these jurisdictions.
->
>
+  To see an example of the alternate outcome, take a backward society with no significant protection for individual civil liberties: England.  The mandatory surrender of mobile phones by rape complainants has played a significant role in deterring complaints and in giving prosecutors reason to decline cases, two of the factors in bringing about the de facto decriminalization of rape in the statelet.
-<
<
+ Subsection B
->
>
+  So a slightly broader effort to understand legal and social context will provide in the next draft the improvement it needs.

NinniSusanThomasSecondEssay 1 - 07 Jan 2022 - Main.NinniSusanThomas

Line: 1 to 1

Added:

>
>

META TOPICPARENT	name="SecondEssay"

Paper Title The Right Against Self-Incrimination in the Digital Age
- Current scenario in the United States
  - - Context in India and current situation
  - - Subsub 1
    - Subsub 2
- Conclusion
  - The questions of whether forcing a person to provide their password or a fingerprint to allow investigating authorities to access their electronic devices is akin to being forced to give their DNA or undergo polygraph testing, which is clearly a violation of their privacy, will have to be debated further in both these jurisdictions.
  - Subsection B

It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.

Paper Title The Right Against Self-Incrimination in the Digital Age

-- By NinniSusanThomas - 07 Jan 2022

Mobile phones almost being an extension of our lives, with it tracking every conversation, expenditure, location, can act as the pivotal part if one was to be involved in a criminal investigation. The question of whether a person can be forced to hand over passcodes of their electronic devices that could lead to self-incriminating information has been discussed in recent times in both the United States and India. It raises very interesting questions surrounding the right against self-incrimination and the right to privacy.

Current scenario in the United States

In the United States, relying on the foregone conclusion doctrine (Fisher v. United States), it may be argued that as the contents of the phones of accused would already be known to the investigating authorities, forcing them to give passwords of their phones cannot be seen as a violation of their right against self-incrimination. This question of law, wherein the extension of the right under the Fifth Amendment to not provide a phone’s password is pending in an appeal to the Supreme Court in Andrews v. New Jersey. There have been divergent views in multiple State Supreme Courts as well.

Context in India and current situation

Article 20(3) of the Constitution of India guarantees the right against self-incrimination. Over the years, the Indian Supreme Court’s judgments have provided different - and even conflicting - rationales for this right. These justifications can be broadly grouped into two categories: crime-control justifications and due process justifications. Crime-control justifications view the right against self-incrimination as instrumental towards the criminal law’s goal of uncovering the truth and punishing the guilty. According to this justification, forcing people to incriminate themselves will, more often than not, yield false testimony and lead criminal investigations astray. Due process justifications, on the other hand, view the right against self-incrimination to be part of a broader panoply of criminal procedure safeguards aimed at preserving the dignity of the individual, and maintaining a balance of power between the individual and the State.

The Indian Supreme Court has gone back and forth between these two justifications. The exact text of Article 20(3) reads: “no person accused of an offence shall be compelled to be a witness against himself.” In Kathi Kalu Oghad, the Supreme Court considered the question of whether compulsory taking of fingerprints and handwriting samples were hit by the bar against self-incrimination. The Court held that they were not. What weighed with the Court, among other things, was that fingerprints (and, to a lesser extent, handwriting samples) could not be altered by an individual at will. Consequently, whether or not these samples were coerced from an individual, their intrinsic qualities would remain unchanged. It can be clearly seen that this reasoning fits well within the crime-control justification: linking the right against self-incrimination to an individual’s ability (or lack thereof) to alter a piece of evidence directly flows from a primary concern about the goal of criminal law being to determine truth and punish the guilty.

On the other hand, in Selvi v State, the Supreme Court held that the compulsory taking of a lie-detector test, brain mapping (HEAP) test, and narco-analysis - all interrogation techniques - were all unconstitutional. In the course of its analysis, the Court did not ask about the alterability or mutability of the evidence (a brain scan, for example, would fall well within the unalterability paradigm), but focused instead on the right to mental privacy, and read Article 20(3) along with Article 21 (right to life and personal liberty) of the Indian Constitution.

There is thus a tension in Indian jurisprudence between the crime control and due process justifications of the right against self-incrimination. Whether the right, thus, protects data recovered from an individual’s personal mobile phone, or other device, in the course of investigation, depends on which of these justifications is held to be the correct understanding of Article 20(3). Under the due process justification, a person should be entitled to refuse to provide their password to the police during the investigation. Under the crime control justification, on the other hand, this refusal will be more difficult to defend.

Subsub 1

Subsub 2

Conclusion

The questions of whether forcing a person to provide their password or a fingerprint to allow investigating authorities to access their electronic devices is akin to being forced to give their DNA or undergo polygraph testing, which is clearly a violation of their privacy, will have to be debated further in both these jurisdictions.

Subsection B

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

#Set ALLOWTOPICVIEW = TWikiAdminGroup, NinniSusanThomas
#Set DENYTOPICVIEW = TWikiGuest

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.

Revision 3	r3 - 17 Jan 2022 - 18:14:41 - NinniSusanThomas
Revision 2	r2 - 07 Jan 2022 - 19:51:40 - EbenMoglen
Revision 1	r1 - 07 Jan 2022 - 16:42:04 - NinniSusanThomas

This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.

Syndicate this site RSS ATOM