The Refusal to Unlock His/Her Smartphone and Contempt of Court under the Laws of the United States

Abstract

What should the government do if they fail to unlock or hack suspect’s locked or encrypted smartphone when executing a legitimate search and seizure warrant? Currently, in South Korea, there is no criminal provision to punish someone for refusing the government’s request to unlock the smartphone. In contrast, Article 49(2) of the Regulation of Investigatory Powers Act 2000 in the U.K., Article 434-15-2 of the French Criminal Code, and Article 3LA of the Crimes Act 1914 in Australia allow the government to require anyone to cooperate in unlocking or decrypting his or her smartphone in limited conditions. The courts in the U.S. have laid down different decisions on the issue of whether compelling the suspect to produce the smartphone in a condition of being unlocked or encrypted is repugnant to his or her privilege against self-incrimination under the Fifth Amendment. The courts, then, have ruled that there would be an exception to the privilege when any potential testimonial communication is the “foregone conclusion doctrine” that adds little or nothing to the total sum of the government’s information. Courts, therefore, usually order suspect to unlock or decrypt his or her smartphone when the government can independently prove some facts regarding the doctrine despite the suspect’s privilege. The courts have indirectly compelled suspect to unlock or encrypt his or her smartphone by holding the suspect in contempt of court if he or she fails to do so. The right to remain silent under the Constitution of the Republic of Korea is not an absolute constitutional right, therefore the right may be limited only by a statutory Act if necessary. According to the proportionality doctrine, it is time to consider if we should adopt a new law which allows courts to order suspect to unlock or decrypt his or her smartphone or to issue a warrant requesting his or her to cooperate with the government by unlocking or decrypting it on condition that the government reasonably places his or her a suspicion of committing a serious felony viewed on the prosecution service’s request and submitted evidence showing the facts not only that it would be impossible or seriously difficult to collect evidence through other investigative methods but also that it seems reasonable to conclude that the suspect knows the passwords and the government identifies the contents it seeks with reasonable particularity.