THE PRINCIPLE OF NEMO TENETUR SE DETEGERE IN THE AGE OF DATA

The objective of the present article is to examine the manner in which the Italian criminal justice system protects the nemo tenetur se detegere principle in the digital era, with a view to providing an insight into this approach for an international audience. In doing so, the article will also consider the experience of other legal systems and the jurisprudence of the courts. In Italy, the nemo tenetur is a right that has its origins in the constitutional protection of the right of defense and the presumption of innocence. There is considerable debate surrounding the extent to which the right should be safeguarded. While the majority of scholarship advocates for the broadest possible extension of the right, this view is not universally accepted: the Cassation court has recently adopted a more lenient approach to the protection of the privilege against self-incrimination, which may permit the use of the suspect's refusal to cooperate as grounds for adverse consequences. The issue arises in instances where law enforcement officials require evidence stored on a laptop or mobile phone that cannot be retrieved without a password, or without the potential for irreparable data loss. Questions arise. Does the obligation to disclose one’s password constitute a form of self-incrimination or a violation of the right to remain silent? Would granting police the power to compel passwords cross a linecenturies old against forcing a person to speak to build the case against them? What are the differences between traditional passwords and biometrical authentication, and what difference does this make for the privilege against self-incrimination?