The Privilege Against Self-incrimination And Search Of Encrypted Electronic Data

The right to silence system originated in England,and the law was transplanted to the United States to include the privilege against self-incrimination in the constitutional right in the Fifth Amendment to the federal Constitution,which provides that no person shall be compelled to be a witness against himself in a criminal case.After years of evolution,the privilege against self-incrimination developed to the Act of Production Doctrine and Foregone Conclusion,and applied to the encrypted electronic search system to protect the right to privacy and other basic human rights.China’s encrypted electronic search system started late and was relatively imperfectly constructed,with problems such as lack of judicial review,unclear search initiation elements,and unspecified search scope,and fundamentally ignored the application of the selfincrimination privilege in the encrypted electronic search system.This article will analyze the historical experience and development path of the application of the selfincrimination privilege in the encrypted electronic search system in the United States by comparing the encrypted electronic search system,and make suggestions for the improvement of the system in China.Although the legal systems of China and the United States differ greatly,the experience of the U.S.legal theory and judicial practice is still worthy of our reference for the encrypted electronic search system in China.The main body of this article includes the following three parts:The first part illustrates the current status of legislation relating to encrypted electronic data searches in China,including the legislation which is mainly technical in nature,and the fact that privilege against self-incrimination has not yet become one of basic principles of China’s criminal procedure law.The existing problems includes the unclear definition of compulsory investigation and arbitrary investigation,the lack of strict initiation elements of encrypted electronic search,the unspecified scope of encrypted electronic search,the acquisition of electronic data in the form of mandatory decryption,and the lack of application of the principle against self-incrimination.The second part discusses the main points of the U.S.encrypted electronic search system setting,including the writ doctrine,double judicial review mechanism and encrypted search dilemma,and then examines the core elements and derivative rules of the U.S.principle against compulsory self-incrimination,argues that the act of decryption of electronic data is verbal in nature,and explains the specific application of the foregone conclusion in the search of encrypted electronic data,including the target of government knowledge,the standard of reasonable particularity and the form of search in the specific search scope,and summarizes the rich experience of the relevant theory and practice in the United States.The third part proposes the path to improve the encrypted electronic search system in China.In terms of the application of the principle against self-incrimination,the boundaries between the principle and the mechanism for regulating the obstruction of evidence should be drawn,the scope of evidence disposal covered by the principle against self-incrimination should be clarified,and the infringement nature of forced decryption and the necessity of excluding illegal evidence should be pointed out.In terms of institutional improvement,a due process system based on judicial review system should be built,a distinction should be made between compulsory and arbitrary investigations,a double judicial review mechanism should be constructed,and then different types of electronic searches should be classified according to the different degrees of privacy of electronic data involved in the case,and different levels of approval procedures should be constructed to connect electronic data search and illegal evidence exclusion rules.In addition,it emphasizes the standardization of the prerequisites for search initiation and the scope of search,and bridges the rules of encrypted electronic data search with illegal evidence exclusion.