It was a much anticipated stop. In a decision published on November 7, 2022, the Court of Cassation considered that not communicating the unlocking code for your phone to a police officer who requests it during an investigation may constitute an offence, in certain cases.
What is a “decryption agreement”?
The interrogation arose from a case of drug trafficking. A man, arrested in possession of cannabis and suspected of having information on his phones that could advance the investigation, initially refused to communicate the codes allowing the unlocking of his phone. The Lille Criminal Court, then the Douai Court of Appeal first considered that the suspect was within his rights on this point since the unlocking code for his telephone did not constitute “a decryption convention”.
Most phones on the market today are actually encrypted by default. That is to say, their content is unreadable for anyone who does not know the unlock code. However, the Penal Code provides since 2016 that “anyone with knowledge of the secret convention of deciphering a means of cryptology likely to have been used to prepare, facilitate or commit a crime or an offense” must transmit it to the authorities under penalty of three years’ imprisonment and a fine of €270,000. The question which therefore arose was of a semantic-legal nature: the unlocking code for a telephone is he “a secret decryption convention“?
Until then, previous judgments had held that an unlock code “does not decrypt encrypted data or messages“, just to access the home screen of the phone. Only access codes to encrypted communications applications such as Signal and Telegram could fall within the legal definition of the secret encryption convention. But the Court of Cassation , meeting in plenary assembly, considered that this reading of the law was erroneous, imposing its decision on the other judicial jurisdictions.
Very specific conditions to be met
“A decryption convention means any software means or any other information allowing the clarification of a data transformed by a means of cryptology“justifies the court.”As a result, the unlock code for a mobile phone
can constitute a decryption key if this telephone is equipped with a means of encryption” specifies the stop n ° 659 B + R. Consequently, it is obligatory to transmit this famous code if it is requested by the forces of order. But this must be done in very specific circumstances.
As Matthieu Audibert explainsa gendarmerie officer specializing in private law and criminal sciences, three conditions must be met in order to be able to require a code: the telephone must be equipped with a means of cryptology, it must have been used for the preparation of a crime or an offence, and the owner must be informed that his refusal to communicate the code constitutes an offence.