The plenary assembly of the Court of Cassation considers that, as soon as a mobile phone is equipped with a “cryptology means”, therefore a password, its holder is required to deliver it to investigators .
by Abel Mestre
Can we refuse to give the judicial authorities their mobile phone unlock code? In its judgment of November 7, the Court of Cassation responded in the negative, confirming the case law of the criminal chamber. Consequence: such a refusal constitutes an offense, within the meaning of article 434-15-2 of the penal code. This text punishes the fact of not giving “the secret convention of deciphering a means of cryptology likely to have been used to prepare, facilitate or commit a crime or an offense” of a three -year prison sentence and 270,000 euros fine. It was the plenary assembly that has spoken out, the most solemn judgment formation in the High Jurisdiction, in which all the rooms of the Court are represented. Hence the importance of this decision.
The legal debate which occupied the Court could seem technical: it was a question of whether the code of unlocking a smartphone was or not a “secret convention for deciphering a means of cryptology”, in the sense of the Criminal law. Considering that this was the case, the Court of Cassation decided a debate which opposed it to several courts of appeal, which had released defendants who had refused to give their mobile phone code.
In the case that occupied him on Monday, a person had been arrested for possession of drugs. During her police custody, the latter had refused to give investigators the codes of her two smartphones, likely to have been used as part of drug trafficking. The respondent, who had not given his codes, was released. The Court of Appeal considered that it was not a “deciphering convention”, because unlocking a phone would not make it possible to decrypt data, but simply to unlock the home screen allowing access to the content.
deciphering key
In its judgment of October 13, 2020, the criminal chamber of the Court of Cassation censored this decision. It estimated that the unlock code can be a decryption key if the device has a cryptology means. Indeed, certain phones are equipped, from the outset, with a device making the information contained in the device incomprehensible: it is only once the unlock code of the Home screen activated that the data can be deciphered. In 2021, the dismissal court of appeal did not follow the position of the criminal chamber, and again relaxed the defendant.
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