Digital strip searches in Australia: A threat to the privilege against self-incrimination

Abstract

Law enforcement has experienced difficulties retrieving information stored on the mobile devices of suspects. Over the last years, a number of Australian jurisdictions enacted legislation that allows police officers to compel an individual to unlock their device (such as providing a PIN or fingerprint to unlock the device). Non-compliance with these legislative provisions is punishable by imprisonment. The refusal by suspects to comply with an order to unlock their devices has been addressed in a number of Australian courts. In this article, the authors will discuss this legislative activity and the courts’ responses in light of the privilege against self-incrimination.

Keywords

Criminal procedure policing human rights criminal justice evidence/proof

Technology is rapidly changing the way society communicates and stores information. Today, people store increasing amounts, and types, of data including highly sensitive and private information on their mobile phone or other digital devices such as tablets. Moreover, mobile phones are becoming the primary method of communication¹ and the repository for information such as digital conversations, emails, photos and other private information. Information stored on mobile phones can potentially be evidence that is of a self-incriminatory nature.

These developments have led to the method of criminal investigation used by police and other law enforcement agencies now routinely analysing a suspect’s mobile phone. In the main, however, until recently, when police conducted their investigation, suspects were usually not asked to unlock their devices such as mobile phones and tablets so that the police could have access to the data stored on it. However, recent statute law and case law developments are changing the landscape. Courts are being asked to assess the privilege against self-incrimination in the context of access to mobile phones by police. Legislation to compel suspects to unlock their devices when requested to do so by police has also been introduced.

In addition to the criminalisation of the refusal by an individual to unlock a mobile phone or other device when request to do so by police and other law enforcement personnel, there is also the issue of admissibility of evidence that is obtained as a consequence of police and other law enforcement personnel gaining unlawful or involuntary access to a mobile phone or other device. This important public policy issue was examined by the Victorian Court of Appeal in 2018.² In 2018, South Australia introduced new laws that allow for compelling suspects of serious offences (mostly related to child-pornography) to unlock their devices.³ If an individual refuses to do so, they can face up to five years imprisonment.⁴ The objective of the amended law is to keep up with ‘technologically savvy criminals’.⁵ Attorney-General Vickie Chapman noted that these laws tackle a commonly faced problem and stated: ‘other states are certainly rolling this out because we are all challenged with the fact that this is the modern way that material is stored and transferred by criminals’.⁶ Of significance is the fact that a person ‘is not excused from complying with an order on the ground that to do so may result in information being provided that might incriminate the person’.⁷

Similarly, the Australian Federal Police (AFP) is now allowed to charge non-cooperative suspects if they refuse to unlock their devices.⁸ However, unlike the South Australian provision, the Commonwealth provisions do not prevent an individual from asserting the privilege against self-incrimination. The AFP has indicated that the new penalisation of non-cooperation, in this matter, is an effective method and more suspects are reportedly unlocking their devices when requested to do so.⁹ In Queensland, a search warrant can order a person to give a police officer the password or other form of device security ‘to gain access to stored information that is accessible only by using the access information’.¹⁰ Section 154A prescribes that such a search warrant may be issued if a magistrate or judge is ‘satisfied there are reasonable grounds for suspecting that information stored on the storage device may be relevant evidence’.¹¹ Unlike the South Australian legislature, the Queensland and Commonwealth statutes do not require the alleged offence to involve child exploitation.

In Victoria, an amendment to the Crimes Act 1958 introduced s 465 AAA that provides police with the power to direct a person to provide ‘any information or assistance that is reasonably and necessary’ to enable police to access a device found on the premises that are the subject of the warrant.¹² The privilege against self-incrimination is not available to the person asked to unlock the device; s 465AAA (7). While this provision was introduced to deal with child pornography investigations, one Victorian criminal lawyer has observed:

In the second reading of the Bill introducing Section 465AAA, Victorian Attorney General Martin Pakula said the section was introduced to ‘provide a simple and easy to use process for police to use in urgent cases’. Again, the section is further discussed in the context of child pornography matters, but our experience is that police are relying on the legislation for use in other areas, primarily drug trafficking.¹³

In this article, the authors will provide comment on these legislative developments, including a discussion of relevant case law dealing with the provisions. In addition, the article will examine the public policy question of admissibility of evidence in the context of unlawful or involuntary disclosure of the content of a mobile phone or other electronic devices.

The obstacles for law enforcement when executing a search warrant

When police are executing a search warrant, there is often an issue in relation to searching electronic devices located in the searched premises. Police can search these digital devices but hit a road block once these devices are password protected. Furthermore, an increasing number of devices require facial recognition or fingerprint identification in addition to a password. Hence, the police officers executing a search warrant need assistance from these devices’ owners to unlock them. If an individual is not willing to unlock the devices voluntarily, police do not have authority to compel them to do so.

Police officers and other law enforcement officers’ seizure of electronic devices while executing a search, and the issue of how s 138 of the Uniform Evidence Act¹⁴ deals with evidence obtained from accessing the contents without the consent of the owner, should have recently been addressed in a Victorian Court of Appeal case in which the lawfulness of the seizure of a mobile phone was challenged.¹⁵ In a search, police seized an unlocked Samsung phone belonging to the appellants, and subsequently thoroughly assessed its content without the consent of its owners.¹⁶ Police were able to access photos, Facebook accounts and correspondence of an incriminating nature that were subsequently adduced as evidence.¹⁷ The appellants argued that the Court should exercise its discretion under s 138 of the Evidence Act 2008 (Vic) to exclude the evidence on the basis it was improperly and unlawfully obtained.¹⁸ Although the Court of Appeal considered the seizure and subsequent search of the phone unlawful, it balanced the impropriety with the probative value of the evidence: ‘The desirability of admitting that evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which that evidence was obtained. In particular, we are impressed with the significant probative value of that evidence’.¹⁹

Hence, the information stored on the Samsung phone, being photos and Facebook messages, was admissible.²⁰ The McElroy and Wallace decision demonstrates the role s 138 of the Evidence Act plays, and will continue to play, in weighing up the public policy of ensuring the rule of law is maintained as against the desirability of probative evidence found on a mobile phone or other device being able to be adduced against the accused. However, it has to be noted that in McElroy and Wallace the seized Samsung phone was not password or PIN protected. Hence, the breach of the criminal procedural rules was of lesser seriousness than if it concerned compelling a suspect to unlock a device to assist the investigation.

The tension of course has been resolved in favour of law enforcement, as noted above, in the Commonwealth, Queensland, South Australia and Victoria where laws have been introduced to compel individuals, in the context of investigations, to provide police with access to devices.

The privilege against self-incrimination

Although most may assume that the privilege protects individuals from being forced to make self-incriminating statements, it can be construed in a broader sense. Generally, the privilege, in its purest form, means that no individual can be compelled to contribute to their own conviction. As Brennan J stated:

[i]t is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged.²¹

Thus, compelling suspects to unlock their devices can be viewed as undermining the right that an individual has to the privilege. By unlocking the phone, the suspect indirectly acknowledges familiarity and potentially ownership of the device. Just providing a password or PIN is demonstrating at least familiarity with the device. By unlocking the device, ownership or familiarity can be inferred resulting in an implied testimony that the suspect is familiar with the content on the device.

Self-incrimination: The courts’ response to recent legislative activity

The legislative provisions referred to above have been examined by the courts. Two Australian courts have examined the penalisation of non-compliance with the request to unlock devices and, therefore, the refusal to potentially hand over incriminating evidence in light of the privilege against self-incrimination. In Queensland, the Court of Appeal (Philippides JA, North and Henry JJ) in Wassmuth v Commissioner of Police considered the application of an individual who was convicted of disobeying a lawful order (hereinafter the applicant).²² The applicant was suspected of supplying dangerous drugs and possession of such drugs. The applicant’s premises were searched after a Magistrate approved the search warrant.²³ The warrant prescribed the search of the premises including ‘laptop or personal computers and mobile phones’.²⁴ In addition to this, the warrant provided that the applicant had to ‘give a police officer access to the storage device and the access information necessary for the police officer to be able to use the storage device to gain access to stored information that is accessible only by using access information’, pursuant to the recently enacted Queensland legislation.²⁵ Failure, without having a lawful excuse not to comply with the order, could result in an offence punishable by up to one year imprisonment.²⁶ Upon execution of the warrant, the applicant refused to provide the PIN that was needed to unlock her phone.²⁷ This refusal subsequently resulted in a conviction of disobeying a lawful order in accordance with s 154 of the Police Powers and Responsibilities Act 2000 (Qld) (hereinafter PPRA).²⁸

On appeal, the applicant successfully argued that the privilege against self-incrimination constituted a ‘lawful excuse’ for her disobedience.²⁹ The respondent construed the privilege as exercising the right to silence and submitted that the applicant was cautioned, and therefore there was no violation of the privilege against self-incrimination.³⁰ The Court stressed that the privilege against self-incrimination is a fundamental right that is closely protected by the courts.³¹ The risk of self-incriminatory conduct, in this context, lies within compelling a suspect to answer questions in relation to ownership or possession of the device, or knowledge on how to access the information stored on the device.³² The Court argued that the privilege against self-incrimination was a ‘lawful excuse’ to disobey this order and subsequently granted the applicant leave to appeal.

One member of the Court, North J, also expressed concerns about the provisions of the PPRA that the Queensland police relied upon when exercising these powers:

I am fortified in the conclusion I have reached by the amendments made by the Parliament subsequent to the events with which this Court is concerned to insert provisions into the PPRA and the Code of which the former expressly refer to and in terms remove a person’s privilege against self-incrimination in this context.³³

The Federal Court has taken a similar approach.³⁴ In August 2018, a South Australian Magistrate granted an order requiring a suspect (hereinafter the plaintiff) to provide information or assistance which was necessary to gain access to data stored on a Samsung mobile phone.³⁵ Shortly after the order was granted, an AFP agent requested the plaintiff to provide passwords that were needed to unlock his mobile phone.³⁶ The plaintiff refused to provide a PIN or password to unlock the device and addressed the matter to the Supreme Court of South Australia seeking judicial review of the Magistrate’s decision.³⁷ The proceedings were transferred to the Federal Court that subsequently considered the argument that complying with the order, and more generally its legislative underpinning, may infringe the plaintiff’s right to silence and the privilege against self-incrimination.³⁸ White J did not solely assess the order issued by the Magistrate, but also commented on the content of these laws.³⁹ In his consideration, White J argued that the statutory underpinning of this authorisation is an ‘abrogation of the privilege’.⁴⁰ He considered the penalising for non-compliance to be a method of coercion of the order and infringement of the privilege.⁴¹ His Honour said: ‘In particular, the disclosure of the information without his consent could be used to implicate him in criminal offences. In my view, given the fundamental nature of the common law privilege against self-incrimination, the course would be inappropriate’.⁴²

Although there were many relevant considerations in this decision,⁴³ core for the purposes of fundamental rights argument is that the Court held that compelling the plaintiff to provide passwords to unlock his phone would result in an encroachment of the privilege against self-incrimination. Hence, the Court ruled that the plaintiff could not be compelled to unlock his device.

Foreign courts’ responses to this issue

Although legislative reform in relation to requiring suspects to assist law enforcement in unlocking devices has only recently been embodied in Australian statute law, this has been a commonly experienced issue addressed in courts in a number of countries. The issue has been considered by judges in Canada, the Netherlands and the US. In the former, for example, the District Court of North Holland ruled that the coercion of a suspect to unlock his phone with his finger was no different than compelling a suspect to provide a fingerprint for identification purposes.⁴⁴ Some other cases that have addressed this issue have taken a different approach. The approach used by Australian courts is consistent with two US court decisions.

Following US Supreme Court precedent,⁴⁵ two District Courts have recently denied search warrant applications requesting the authority to compel suspects to unlock their devices.⁴⁶ By determining that such an order would violate the individual’s Fifth Amendment rights, an Illinois District Court Judge argued:

With a touch of a finger, a suspect is testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint password capabilities, and that he or she currently has some level of control over or relatively significant connection to the phone and its content.⁴⁷

This judge reasoned that the act of involuntarily unlocking a device to comply with an order contributes to the production of self-incriminatory evidence which is an infringement of the privilege against self-incrimination.⁴⁸

A Canadian Court came to a similar conclusion. In R v Shergill, the Court assessed the ability to compel an individual to provide a password and subsequently unlock his Blackberry phone when ordered to do so by police given the Canadian Charter of Rights and Freedoms.⁴⁹ Ontario Police requested a judge to grant an ‘assistance order’ that would require the accused to unlock his phone.⁵⁰ The Crown argued that the right to silence ‘should not permit password protection to act as a trump card against evidence gathering in the name of self-incrimination’.⁵¹ Although the Court recognised that password-protected devices present challenges for effective law enforcement today, it dismissed the application for an assistance order⁵² by noting:

I accept that the current digital landscape as it relates to effective law enforcement and the protection of privacy presents many challenges. It may be that a different approach to this issue is warranted, whether through legislative initiatives or modifications to what I see as jurisprudence which is binding on me. But on my best application of controlling authority, I am simply not persuaded that the order sought can issue without fundamentally breaching Mr Shergill’s s 7 liberty interests, a breach which would not be in accordance with the principle of fundamental justice which says that he has the right to remain silent in the investigative context.⁵³

A number of US state superior courts have also examined the tension between the privilege against self-incrimination and evidence gathering in the context of mobile phones. The latest of these decisions, at the time of writing, is that of the Oregon Court of Appeals in State v Pittman.⁵⁴ The Court held, and in doing so applied recent appellate court authority from other jurisdictions such as Montana and New Jersey,⁵⁵ that if police can show it is a foregone conclusion that the suspect knows the password of the phone then the suspect can be compelled to provide that password.⁵⁶ The Fifth Amendment concern about the privilege against self-incrimination is overcome because, as a recent decision in Massachusetts puts it: ‘In the context of compelled decryption, the only fact conveyed by compelling a defendant to enter the password to an encrypted electronic device is that the defendant knows the password and can therefore access the device’.⁵⁷

Commentary

These cases demonstrate that technical enhancement is challenging law enforcement to gain access to encrypted information stored on digital devices. It has been argued that the ‘modernisation of criminal investigation’ was needed to gather information that otherwise would be locked away.⁵⁸ As outlined above, recently enacted legislation in Australia is being scrutinised by the courts. However, despite these recent legal reforms, the courts remain gatekeepers in relation to the protection of fundamental rights. The judicial protection and response to potential encroachment of the privilege against self-incrimination, in this context, is a positive sign.

An issue which emerges is whether suspects feel pressured to comply with such an order without contesting its validity or potential punishment. Compliance with such an order means that the suspect voluntarily unlocks their device. The privilege against self-incrimination does not protect these individuals in this context because they voluntarily waived this right. Hence, the practices of Australian law enforcement may be resulting in prosecutions based on evidence that would normally not be obtained if an individual refused to waive their right to the privilege against self-incrimination. Suspects may be handing over their incriminating evidence to prosecutors that could result in convictions with lengthy prison sentences, fearing they would be punished for not doing so.

The lack of a national enforceable human rights Charter or Act,⁵⁹ such as exists in Canada, means that the privilege against self-incrimination is not adequately protected, because the individual who is forced to provide police and other law enforcement agents with access to their phone or other device can only rely on s 138 of the Evidence Act and the common law concerning the discretion to admit. As demonstrated in McElroy and Wallace, although content on a mobile device is improperly obtained, the exercise of the judicial discretion can favour admission if the evidence adduced is sufficiently probative. This rewards police and other law enforcement agencies for breaching an accused’s fundamental rights.

However, the attitude of the Queensland Court of Appeal and Federal Court, as noted above, in interpreting legislation concerning electronic searches, provides some hope for those who value fundamental rights in criminal procedure and the protection of individuals against any kind of impropriety in this context.

The right to silence is fundamental to our criminal justice system. If an individual cannot be compelled to answer questions put to them by police officers, why would it be appropriate to compel an individual to unlock their electronic device?

In this context, there is the concerning statement from the AFP that has recently stated that its new encryption law has assisted them in ‘coercing suspects to unlock their devices’.⁶⁰ This statement, and the attitude underpinning it, should alarm those who are concerned about the protection of fundamental rights in the Australian criminal justice system.

Footnotes

Acknowledgments

The authors are grateful for the feedback obtained from the reviewers and editors of the Alternative Law Journal, and also wish to thank Professor Greg Taylor for his input in helping locate specific South Australian legislation amendments.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Lisanne Adam

1

In Australia, nine out of 10 people own a smartphone according to Deloitte Access Economics, Mobile Nation 2019, 2 .

2

McElroy v The Queen; Wallace v The Queen [2018] VSCA 126, 55 VR 450.

3

Statutes Amendment (Child Exploitation and Encrypted Material) Act 2019 (No 13 of 2019) (SA) inserting Part 16A of the Summary Offences Act 1953 (SA).

4

Summary Offences Act 1953 (SA) s 74BW (1).

5

SA proposes laws to force suspects to unlock devices or go to jail’, ABC News (online, 8 November 2018) .

6

Ibid.

7

Summary Offences Act (SA) s 74BW (2).

8

Crimes Act 1914 (Cth) s 3LA.

9

Paul Karp, ‘AFP says new encryption laws have helped coerce suspects into unlocking devices’, The Guardian (online, 4 February 2019) .

10

Police Powers and Responsibilities Act 2000 (Qld) ss 154A and 154B.

11

Ibid s 154A (5).

12

Crimes Amendment (Child Pornography and Other Matters) Act 2015 (Vic), as enacted.

13

Anthony Isaacs, ‘Smartphones & The Law: Understand Your Rights & Responsibilities’ (Blog Post, 11 April 2017) .

14

Section 138(1) states: Evidence that was obtained (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law – is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

15

McElroy and Wallace (n 2). This case was also thoroughly analysed in Paul McGorrery, ‘They found my iPhone’ (2018) Law Institute Journal 27.

16

Ibid [72].

17

Ibid [35]–[36], [43].

18

Ibid [77]–[79], Evidence Act 2008 (Vic) s 138.

19

Ibid [143].

20

Ibid.

21

Hammond v The Commonwealth [1982] 152 CLR 188, [2].

22

Wassmuth v Commissioner of Police [2018] QCA 290.

23

Ibid [2].

24

Ibid [3].

25

Ibid [4].

26

Criminal Code Act 1899 (Qld) s 205.

27

Wassmuth (n 22) [7].

28

Ibid.

29

Ibid [18].

30

Ibid [24]–[25]

31

Ibid [28].

32

Ibid [27].

33

Ibid [29].

34

Luppino v Fisher (No 2) [2019] FCA 1100.

35

Ibid [2]. Luppino v Fisher [2018] FCA 2106 [12].

36

Luppino 2 (n 34) [3].

37

Luppino 1 (n 35) [6].

38

Luppino 2 (n 34) [64].

39

Luppino 1 (n 35) [26].

40

Ibid.

41

Ibid [27].

42

Ibid [32].

43

For example, the Court also considered the validity of the order in relation to requesting assistance after the device was seized.

44

Rechtbank Noord-Holland [District Court of North-Holland, the Netherlands], NJFS 15/168454-18, 25 January 2019 (author’s trans), [3.2]–[3.3].

45

United States v John Doe, 82 US 786 (1984); Fisher v United States, 425 US 391, 409 (1976).

46

In re Application for a Search Warrant, 17 M 081 (ED D Ill, 2017); Search of a residence in Oakland, California, 4-19-70053(ND D Cal, 2019).

47

In re Application for a Search Warrant, 17 M 081 (ED D Ill, 2017) 12.

48

Ibid 13.

49

R v Shergill [2019] ONCJ 54.

50

Shergill [3]–[4].

51

Ibid [46].

52

Ibid [48], [52]–[53].

53

Ibid [51].

54

State v Pittman 300 Or App. 147 (2019).

55

State v Johnson, 576 SW 3d 205, 227 (Mo Ct App 2019); State v Andrews, 457 N.J. Super. 14, 24, 197 A 3d 200 (NJ Ct App Div 2018).

56

Orin S Kerr, ‘Compelled Decryption and the Privilege Against Self-Incrimination’ (2019) 97 (4) Texas Law Review 782–4.

57

Commonwealth v Jones, 481 Mass. 540, 547–48, 117 NE 3d 702 (2019).

58

‘SA proposes laws to force suspects to unlock devices or go to jail’, ABC News (online, 8 November 2018) .

59

There are human rights charters or laws in Victoria, Queensland and the ACT. In Victoria the Charter of Human Rights and Responsibilities Act 2006 provides that a person is ‘not to be compelled to testify against himself or herself or to confess guilt’; s 25(2)(k). In Queensland and the ACT such a right also exists; Human Rights Act 2019 (Qld) s 32(2)(k); Human Rights Act 2004 (ACT) s 22(2)(i). However, the enforcement of these human right provisions has been scrutinised by academics and legal advocates as the remedies for breach are relatively ineffective. See, eg, Louis Schetzer, ‘Queensland’s Human Rights Act: Perhaps not such a great step forward?’ (2020) 45(1) Alternative Law Journal 12.

60

Karp (n 9).

Lisanne Adam is a PhD candidate in Criminal Justice and Corrections, Graduate School of Business and Law, RMIT University, Melbourne, Victoria.

Greg Barns is a Barrister at Salamanca Chambers, Hobart, Tasmania.