The principle of non-self-incrimination and access to a personal database stored in the cloud within the scope of criminal proceedings

Abstract

This article aims to analyze the access to a personal database stored in the cloud for the purpose of obtaining evidence during the investigation and the criminal procedure itself, in light of the principle of non-self-incrimination - nemo tenetur se detegere. Documentary and bibliographical research was carried out in doctrines, jurisprudence of the superior courts and in the national legislation that deal with the subject, with a qualitative methodological approach. Initially, the research presents reflections on the principle under discussion, to then address the issue of cloud data storage, obtaining its content as a document and its treatment to be admitted as evidence within the scope of the investigation and of criminal prosecution. In addition, the research included the obligation to provide data stored in the cloud and the need for a court order to break secrecy and subsequent access to the personal cloud. Thus, the main conclusions reached are that it is not mandatory for the accused to provide passwords or grant access to their electronic devices, under the protection of the studied principle, however, as a result of a court order to break the confidentiality of private communications, data storage service providers, even foreign ones, must make them available, subject to Brazilian legislation.In addition, this judicial determination must be based on reasonable evidence of authorship, the presence of criminal materiality and the plausibility of the accusations, limited to what is necessary in the search for the real truth, under penalty of incurring the investigation of private life, violating other principles fundamental principles, such as the super principle of the dignity of the human person.