NCJ Number
242369
Date Published
2012
Length
222 pages
Annotation
This report examines changes in European laws dealing with decryption orders that force suspects to provide law enforcement with access to protected data and the suspects' right against self-incrimination.
Abstract
This report was produced by the Research and Documentation Center in the Dutch Ministry of Justice to examine whether Dutch laws regarding the use of decryption orders need to be changed. The report re-examines the European laws dealing with decryption orders that force suspects to provide law enforcement with access to protected data and the suspects' right against self-incrimination. Following a study conducted in 2000, the European Court of Human Rights has maintained that a suspect's right against self-incrimination trumps the need for use of decryption orders. This report examines new developments in technology and case-law to determine whether this standing needs to be readjusted. The investigation found that since 2000, changes in technology and changes in case-law suggest that decryption orders for suspects could be compatible with the right against self-incrimination provided effective and adequate safeguards have been put in place by law enforcement and the courts. Following this finding, the report provides three recommendations for Dutch legislators regarding the use of decryption orders: 1) maintain the status quo: a decryption order may not be issued to a suspect, rather a suspect should be asked to voluntarily cooperate with authorities; 2) a decryption regulation in accordance with the regulation of interrogation: decryption requests should be regulated in the same manner as requests to interrogate; and 3) a decryption command to suspects with criminalization of non-co-operation in which failure to cooperate with a decryption order is penalized under Dutch criminal code. Report is in Dutch with an accompanying summary in English. Tables and references