The plenary assembly of the Court of Cassation on November 7, 2022 has just answered a crucial question: can you refuse to give the authorities the access code to your smartphone as part of an investigation? For the Supreme Court, this may represent a misdemeanor.
Can we refuse to give the unlock code of our smartphone in the context of a legal investigation? Imagine that you will be guilty of an offense under article 434-15-2 of the penal code. In any case, this is the position of the Court of Cassation in its judgment delivered on November 7, 2022.
To support its decision, the plenary assembly of the Court of Cassation therefore relies on this article which provides that “refusing to give the judicial authorities the secret agreement for deciphering a means of cryptology is likely to have been used to prepare, facilitate or commit a crime or an offense is punished by 3 years’ imprisonment and €270,000 fine”.
A legal question that dates back to 2019
Before going into detail, let’s put the context. In 2019, one person was arrested for possession of narcotics. While in police custody, she refused to give investigators the codes allowing access to two smartphones likely to have been used in drug trafficking.
The defendant, prosecuted by a criminal court, was not convicted for having refused to give the precious sesame. At the time, the Court of Appeal considered that these codes did not represent “a convention for deciphering a means of cryptology” because it was not used to decrypt data, but only to unlock a home screen allowing access to data contained in the device.
In 2020, the Criminal Division of the Court of Cassation rejected this decision, ensuring that, on the contrary, the unlocking code for a smartphone could be considered an encryption key. Only in 2021, the Douai Court of Appeal chose to ignore this case law and again acquitted the accused. The public prosecutor’s office then decides to appeal once again to the Court of Cassation.
A code remains an encryption key for the Court of Cassation
And so here we are on October 14, 2022, the date on which the Court of Cassation chose to re-examine this case in plenary session, which is the most important formation since all the Chambers of the Court are represented there. The highest court of the judiciary considers again that “home screen unlock code” of a smart phone”may constitute an encryption key”. By extension, “its holder, who will have been informed of the penal consequences of a refusal, is required to give the investigators the unlock code for the home screen”. You would have understood it, the Court of Cassation therefore once again censured the judgment of the Douai Court of Appealand it is now up to the Paris Court of Appeal to retry this case.
