The Court of Cassation stressed that the refusal to communicate the unlocking code of a mobile phone can constitute an offence. She also linked this code to the secret decryption convention, an essential concept for encrypting Android smartphones and iPhones.
Refusing to provide an investigator with the unlock code for a smartphone may constitute an offense in France. It is at this conclusion that the Court of Cassation reached, in a decision rendered on November 7, 2022 in plenary assembly – the most solemn formation, with nineteen magistrates. The Court’s new decision is binding on other courts.
In France, the law provides for a prison sentence of three years and a fine of 270,000 euros for anyone who refuses to hand over to the judicial authorities the ” secret convention for deciphering a means of cryptology “, when this means of cryptology has been involved in an offense or a crime. These penalties are increased if the delivery of the convention could have prevented this offense or this crime.
This provision in the Penal Code, which has existed since 2016, comes from the law aimed at strengthening “the fight against organized crime, terrorism and their financing, and improving the efficiency and guarantees of criminal procedure”. She raised the issue of the right to silence in the face of this obligation to speak. The Constitutional Council validated the conformity of this measure in 2018.
A means of cryptology is, according to the law, ” any hardware or software designed or modified to transform data, using secret conventions or to perform the reverse operation with or without secret convention “. It serves to ” guarantee the security of the storage or transmission of data, by making it possible to ensure their confidentiality, their authentication or the control of their integrity. »
Generalized encryption in Android and iOS
Today, smartphones offer a basic means of cryptology — it encrypts the device, to make it unreadable without the key. This is the case of Android and iOS. Here, the password used to unlock the content of a smartphone protected by this means of cryptology acts, precisely, as a “secret decryption convention”.
” Virtually all Android devices on the market now come with encryption enabled by default “, recalled in October Android Authority. And, the solution to unlock the phone (PIN code, password, pattern, etc.) just serves as a decryption key. It’s the same logic with Apple and its products — especially the iPhone and iPad.
This specificity in the functioning of Android and iOS – and has been for several generations of these two operating systems – brings the unlock code of a phone screen into the category of secret decryption convention. Therefore, it must be communicated in police custody, when the telephone is involved in a crime or an offence.
Specific criteria for obtaining the code
The individual in police custody may of course not do so, but in this case, he is exposed to the article of the Penal Code mentioned above. However, this does not mean that this scenario will now arise as soon as an investigation takes place. This is the reminder of the Court of Cassation and of the gendarmerie officer Matthieu Audibert, specialist in private law and criminal sciences.
Several criteria must be satisfied: the telephone must be equipped with a means of encryption (this is the case for most telephones). It must also be shown that the telephone was used to prepare or commit a crime or an offence. Finally, it is necessary to warn the owner of these two specificities and also to explain to him that saying nothing constitutes an infraction.
This is not the first time that the Court of Cassation considers that the refusal to transmit the unlocking code constitutes an offense, within the framework provided by law. The criminal chamber has already ruled so in October 2020. The link between the unlocking code and the secret convention for deciphering a means of cryptology remained to be established.
The case concerns a person arrested for possession of narcotics and whose two telephones are likely to have been used in the context of trafficking. She leaves before a court of appeal, after two first passages which were broken by the Court of Cassation. The court of appeal will have to retry, but this time taking into account the decision of November 2022.
The ECHR might agree
However, everything is not over yet: a possible rebound remains possible with the European Court of Human Rights. If the Constitutional Council and the Court of Cassation consider that the obligation to disclose its code does not call into question the right to remain silent, the European jurisdiction could always create a surprise. A procedure is in progress.
Lawyers, however, count on a European Court of Human Rights which would go in the direction of the French courts. This is the case of Matthew Audibert. We find an identical reading in Orphée Haddad, lawyer at the Paris bar, in an article on Dalloz. In both cases, they rely on case law from 1996.
” The right against self-incrimination is primarily about respecting an accused’s determination to remain silent. […]. It does not extend to the use in criminal proceedings of data which may be obtained from the accused by the use of coercive powers, but which exist independently of the will of the suspect. »