By: Haim Wismonsky and Amos Eytan
In recent years, law enforcement agencies around the world have been facing increasing difficulties regarding the need to search password-protected and encrypted computers, cellular phones, specific apps or online services. These difficulties received the public's attention mostly after the terror attack in San-Bernardino on 2015. After the attack, the FBI approached Apple and asked for Apple's assistance in overriding the encryption on one of the terrorists' phone, because the FBI had no technical ability to override the encryption on its own in a reasonable timeframe. Another familiar case in Israel is the case of searching the password-protected phone of Ronel Fisher, a defendant in a high-profile bribe case. Fisher's cellular phone was seized by law enforcement agencies, but was password-protected, and it took a few months for law enforcement to overcome the password, using forensic equipment.
These cases and many more, indicate the collision between the needs of law enforcement and security agencies around the world to lawfully search the computers and cellular phones of suspects and witnesses, and the devices owners' rights to privacy and the privilege against self-incrimination.
The article examines the main technologies used today – and in the foreseeable future – in order to prevent unauthorized access to computer material stored on computers and cellular phones, including face recognition, finger print, vocal identification and so on. The article also reviews the privilege against self-incrimination, from a historical point of view and by presenting the well-known justifications of the privilege. Later, we present the argument that the privilege is usually considered as an absolute privilege, while the privilege's justifications may equally lead to the interpretation of the privilege as relative, meaning that it may be balanced with other interests.
The article wishes to present a legal model on the matter of balancing between the need of law enforcement agencies to overcome security measures installed on phones and computers of suspects and witnesses, and the owners' rights to privacy and the privilege against self-incrimination. The presented legal model describes the privilege against self-incrimination as a relative privilege, and wishes to balance between the conflicting rights and interests. The model does so using a few guidelines, which consist both from strict rules and from parameters that will be examined on a case-by-case basis.