Can a police officer or an investigating authority demand your password? They can not ask you to give your password as it is self-incriminatory.
In 2023, US Senator Ron Wyden, in a letter to the Justice Department wrote that Apple, & Google have been forced by foreign governments to provide users’ data from notifications they get on their devices. He said the companies said, “practice is restricted from public release by the government.”
Apple confirmed it receives such requests from foreign governments. The US federal government “prohibited us from sharing any information,”, Apple maintained, further adding they will update transparency reporting to detail these kinds of requests.
Apple & Google have push notification systems which alert phone users about text messages, app data etc.
This data, if obtained by a government could reveal a user’s habits, communications and whereabouts(Bloomberg).
There are two pertinent judgements:
In Sanket Bhadresh Modi v. CBI, the accused was in custody & The agency submitted that it was waiting for the accused to share the password to unlock the gadgets /devices seized during the investigation and maintained that the accused was not cooperating. The Court held that CBi cannot coerce an accused to reveal or disclose passwords or any other similar details of the digital devices or gadgets seized during the investigation while the trial is ongoing since the accused is protected under Article 20(3) of the Constitution of India.
In 2022, the CBI Court in Delhi held that an accused cannot be forced to provide passwords for his electronic gadget after they are seized. An agency can take the help of a specialised person or agency to crack the password. Asking the accused to provide a password amounts to compelling him to give self-incriminating testimony.
The Court held in CBI vs. Mahesh Kumar that “the said provisions like any other statutory legislation or delegated laws/rules are subject to Constitutional law & Fundamental Rights, Article 20(3) gives protection to the person accused of committing criminal offences to maintain silence when they are compelled to give self-incriminating testimony,”
The facts may be based on oral or written statements of an accused but they can still be compelled for the purpose of identification or comparison with facts and materials which are already in the possession of the investigating agency. Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or “furnish a link in the chain of evidence”.
It is similar to the 5th Amendment in the USA where police cannot demand passwords. Pennsylvania SC ruled that compelling a password from a suspect is a violation of the Fifth Amendment, since it is constitutional protection which gives a right to remain silent, which includes the right to not turn over information that could incriminate them in a crime.
