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Smartphone decryption via forced fingerprinting and the right against self-incrimination: The German federal court (BGH) addresses the problem

Year: 2025

Type: article

Abstract: Due to their storage capacity and evidentiary potential, smartphones are often seen as key sources of evidence in criminal investigations. In March 2025, the German Federal Court addressed the question of whether compelled smartphone decryption through forced fingerprinting violates the right against self-incrimination. During a search and seizure operation, the police forced the defendant’s right index finger on the fingerprint sensors of two smartphones to unlock them. The Court ruled that no violation had occurred, as the police did not require the defendant’s active cooperation. This note examines the BGH's reasoning and situates it within the comparative debate. The note argues that the decision is relevant because it affirms the “active cooperation” approach and avoids the problematic distinction between testimonial and physical evidence. Compared with the approaches of the European Court of Human Rights and the United States Supreme Court, the BGH's framework offers greater clarity and predictability, as well as broader protection.

Source: Computer law & security review

DOI: 10.1016/j.clsr.2025.106215

Author: Javier Escobar Veas

Institution: Max Planck Institute for the Study of Crime, Security and Law

Language: English

Topic: Criminal Law and Evidence

Subfield: Law

Field: Social Sciences

Domain: Social Sciences

SDG: Peace, justice, and strong institutions

Open Access status: hybrid

Funder: Alexander von Humboldt-Stiftung