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Thematic Issue: Law and Economics/General

Encryption and the Privilege against Self-Incrimination: What Happens When a Suspect Refuses to Divulge a Password


Daniel Hochstrasser

The use of encryption to protect electronic devices, including smartphones and computers, is commonplace. This may impede the ability of law enforcement officials to access data on encrypted devices, even where a warrant has been obtained to search that device. A common response to this problem is for law enforcement officials to seek an order compelling a suspect in a criminal investigation to produce the password to the encrypted device. In response, suspects have argued that providing that information would infringe the privilege against self-incrimination. This article considers the role of the privilege against self-incrimination in the face of a court order to produce the password to an encrypted device. It does this through a comparative approach, examining how the privilege is understood in Australia and the comparator jurisdictions. It concludes that the express abrogation of the privilege is an appropriate legislative response to this issue in Australia.

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(2022) 45(3) UNSWLJ 914: