If during the investigation of a criminal case, the investigators ask the suspect or the witness to provide a password to access the computer or unlock the phone, he has the right to refuse. No one is obliged to testify against himself, his spouse and close relatives - this right is enshrined in the Constitution of the Russian Federation (Article 51) and in the Fifth Amendment to the Constitution of the United States.
Another thing, if the court issued a search warrant. Under certain conditions, the refusal to provide a password may be considered an obstacle to justice. For example, in 2011 in the United States
, a user of the TrueCrypt program was arrested , who refused to provide the court with a password from a partition on his hard drive encrypted with TrueCrypt.
But it turns out that if the device is unlocked by biometric information (for example, a fingerprint), and the user has died, then this is a kind of luck for the investigation - in this case no search warrant is required. The constitutional rights of a citizen are not violated, because he is dead. This opinion came lawyers during the discussion of the case, which occurred in March 2018 in the city of Clearwater (Florida).
Two investigators went to the 30-year-old Linus F. Phillip (Linus F. Phillip), who was peacefully lying in a coffin in the funeral home of the Sylvanian abbey in Clearwater, Florida, local newspaper
Tampa Bay Times writes . The purpose of the detectives was the finger of the deceased - with his help, they tried to unlock a mobile phone.
Although the attempt was unsuccessful, the very fact of intervention by inspectors offended the relatives: “It seemed to me such disrespect and desecration on their part,” said Victoria Armstrong, the bride of the deceased. Neither her nor her relatives were informed that guests had come to the remains of Louis and carried out “investigative actions” with the body.
Police, in accordance with the law, shot Linus Phillip on March 23, 2018 at a gas station in the city of Largo (Florida), when he tried to leave from law enforcement officers to avoid a search.
Lieutenant Randall Cheney (Randall Chaney) explained that investigative actions were taken during the investigation into the murder of Phillip and the separate drug trafficking case, which the deceased is undergoing. He also explained that in this case the detectives did not request a search warrant, since they had suggested that the dead man did not comply with the constitutional norms in terms of confidentiality requirements.
Apparently, the way it really is. The assumption of the police that the dead people lack relevant constitutional rights was confirmed by several independent legal experts. In fact, the remnants of the body - this is not a US citizen, and tangible property, that is, the Fifth Amendment to the Constitution or other laws on the protection of confidentiality can not apply to the remains of a human body to the same extent as a living body that has consciousness.
But relatives of the deceased in such matters are guided not so much by legal norms as by ethical considerations and feelings. For them, the remnants of flesh in the coffin are still associated with the person they knew: “While the deceased person has no personal interest in the remnants of his body, the family, of course, has such an interest,” explains Charles Rose. Professor and Director of the Center for Excellence in Advocacy at the College of Law of Stetson University - so this procedure really looks ugly. This is disgusting, which worries most people. ”
According to the police, after death there is a window of 48-72 hours for using the fingers of a corpse to access the phone using a fingerprint sensor. The police fit into this window. The only problem is that it happened after the body was transferred from the morgue to the funeral home. Therefore it was necessary to offend the feelings of relatives in the interests of the investigation.
The story can be an interesting legal precedent. The fact is that biometric authentication using a face scanner and a fingerprint appeared in mobile phones relatively recently, so for the police such investigations are still new. Until now, it was not known about the cases where the investigators came to the dirge or dug up graves in order to attach the finger of the deceased to the fingerprint scanner.
In 2014, the US Supreme Court decided that searching a mobile phone after being arrested without a search warrant is a violation of the Constitution. But if we are talking about the phone of a dead person, the situation changes completely, because the corpse has neither the right of ownership of the phone, nor constitutional rights to protect privacy and self-incrimination.
The current laws do not leave a person any rights after death. For example, blood can be safely taken from his body by court order, says Remigius Nwabueze, associate professor of law at Southampton Law School, which specializes in human rights after death and bioethics. In his opinion, with which some human rights activists agree, the actions of the police in such a situation are “ethically unjustified”. Some even believe that it is necessary to change the law - and require the presence of a warrant and notification of the family if the investigating authorities need to somehow use the remains that used to belong to their relative.