Nov 11, 2022, 13:49 pm
Published: November 8, 2022
The French Court of Cassation has ruled that people who are suspected or accused of a crime are obliged to reveal the passcode of their mobile phone to the investigative authorities. The Court found that a mobile phone passcode can be considered a “secret decryption agreement of a means of cryptology” (convention de déchiffrement d’un moyen de cryptologie). Refusing to hand over the passcode of a mobile phone is punishable by a fine of up to 270,000 EUR or three years’ imprisonment. This punishment is increased to a fine of 450,000 EUR or five years’ imprisonment where revealing a passcode and giving access to the content of the mobile device could have prevented a criminal offence or reduced its impact.
Fair Trials’ Senior Legal and Policy Officer Ilze Tralmaka said:
About the Court of Cassation ruling
The case behind the ruling involves Mr. O., who was arrested for possession of drugs. While in custody, he refused to give the investigators the codes to unlock two telephones that they suspected had been used in drug trafficking (cannabis). On top of drug-related offences, he was also charged with the offence of secret decryption agreement of a means of cryptology. However, he was initially acquitted of that specific offence both at first instance and by the Court of Appeal who considered that the passcode was not a “cryptographic decryption agreement” as it was not used to decrypt data, but only to unlock a home screen allowing access to the data contained in the device. The prosecutor appealed to the Criminal Division of the Court of Cassation.
In its 7 November 2022 decision, the Court of Cassation ruled that where a mobile phone is equipped with an “encryption device”, the passcode to unlock its home screen may constitute a “decryption key” if the activation of this code has the effect of revealing the encrypted data contained in or accessed by the device. Therefore, where a mobile phone has these technical features – as is the case with most mobile phones today – and is likely to have been used in the preparation or commission of a crime, the owner, who has been informed of the criminal consequences of a refusal to communicate the passcode to investigators, is obliged to reveal the passcode to investigative authorities or face a criminal conviction for a refusal to do so.
“Decryption orders” in France are currently under review before the European Court of Human Rights in the case of Minteh v. France. In March 2022, Fair Trials intervened in the case arguing that where a suspect or accused person has a legal obligation to reveal mobile phone passcodes, their refusal should be covered by the privilege against self-incrimination. This is an essential guarantee of a fair trial which serves to protect suspects or accused persons against undue coercion during the investigation. Decryption orders do not fall within the acceptable exceptions (such as collection of fingerprints or DNA samples) from the privilege against self-incrimination and the right to silence under Article 6(1). Therefore, defendants should not be forced to actively cooperate with the investigation against them under the threat of criminal conviction and a substantial fine or lengthy imprisonment.
https://www.fairtrials.org/articles/news...l-offence/
The French Court of Cassation has ruled that people who are suspected or accused of a crime are obliged to reveal the passcode of their mobile phone to the investigative authorities. The Court found that a mobile phone passcode can be considered a “secret decryption agreement of a means of cryptology” (convention de déchiffrement d’un moyen de cryptologie). Refusing to hand over the passcode of a mobile phone is punishable by a fine of up to 270,000 EUR or three years’ imprisonment. This punishment is increased to a fine of 450,000 EUR or five years’ imprisonment where revealing a passcode and giving access to the content of the mobile device could have prevented a criminal offence or reduced its impact.
Fair Trials’ Senior Legal and Policy Officer Ilze Tralmaka said:
Quote:“Anyone who is suspected or accused of a crime has the right not to incriminate themselves. This is an essential guarantee of a fair trial, which helps to protect people from undue coercion during an investigation. Forcing people to open their mobile phones threatens this right. People should not be forced to actively cooperate with an investigation against them under the threat of criminal conviction and a substantial fine or lengthy imprisonment.”
About the Court of Cassation ruling
The case behind the ruling involves Mr. O., who was arrested for possession of drugs. While in custody, he refused to give the investigators the codes to unlock two telephones that they suspected had been used in drug trafficking (cannabis). On top of drug-related offences, he was also charged with the offence of secret decryption agreement of a means of cryptology. However, he was initially acquitted of that specific offence both at first instance and by the Court of Appeal who considered that the passcode was not a “cryptographic decryption agreement” as it was not used to decrypt data, but only to unlock a home screen allowing access to the data contained in the device. The prosecutor appealed to the Criminal Division of the Court of Cassation.
In its 7 November 2022 decision, the Court of Cassation ruled that where a mobile phone is equipped with an “encryption device”, the passcode to unlock its home screen may constitute a “decryption key” if the activation of this code has the effect of revealing the encrypted data contained in or accessed by the device. Therefore, where a mobile phone has these technical features – as is the case with most mobile phones today – and is likely to have been used in the preparation or commission of a crime, the owner, who has been informed of the criminal consequences of a refusal to communicate the passcode to investigators, is obliged to reveal the passcode to investigative authorities or face a criminal conviction for a refusal to do so.
“Decryption orders” in France are currently under review before the European Court of Human Rights in the case of Minteh v. France. In March 2022, Fair Trials intervened in the case arguing that where a suspect or accused person has a legal obligation to reveal mobile phone passcodes, their refusal should be covered by the privilege against self-incrimination. This is an essential guarantee of a fair trial which serves to protect suspects or accused persons against undue coercion during the investigation. Decryption orders do not fall within the acceptable exceptions (such as collection of fingerprints or DNA samples) from the privilege against self-incrimination and the right to silence under Article 6(1). Therefore, defendants should not be forced to actively cooperate with the investigation against them under the threat of criminal conviction and a substantial fine or lengthy imprisonment.
https://www.fairtrials.org/articles/news...l-offence/