Telephones and new technologies: a new criminal offense
Refusing to provide one’s phone passcode to the police is no longer a right of defense but now constitutes a criminal offense punishable by law. Validated on March 30th by the Constitutional Council, Article 434-15-2 of the Penal Code punishes the refusal to provide a “secret encryption agreement” to investigators with up to five years in prison.
Even today, most investigative tools capable of extracting information from smartphones require knowledge of the unlock code from the outset, unless specialized and expensive services are used. The prosecution of refusing to provide this information is thus intended to expedite procedures delayed or even hampered by such barriers.
This position effectively reinforces the pursuit of confessions and the disclosure of personal information under the threat of criminal prosecution, which, depending on the original offense, can be more severe, at the expense of the right to remain silent and the violation of privacy.
The importance of this decision lies in the way the article will be used, and many professionals are eagerly awaiting the interpretations of the Court of Cassation and even the sanctions imposed by the European Court of Human Rights.
Update 2020: The Criminal Chamber of the Court of Cassation ruled on this issue at the end of 2020. Overturning the Court of Appeal’s decision, it held that refusing to provide a phone’s unlock code can constitute an offense if it is related to data encryption.
Framework for the new criminal offence
On March 30, 2018, the Constitutional Council declared the offense defined in Article 434-15-2 of the Penal Code to be in conformity with the Constitution.
This article, which provides for penalties of up to five years’ imprisonment and a €450,000 fine, punishes “the act, by anyone who, having knowledge of the secret decryption key for an encryption method likely to have been used to prepare, facilitate, or commit a crime or offense, of refusing to hand over said key to the judicial authorities or to implement it.”
The decision, rendered on a priority preliminary ruling on constitutionality, stems from the refusal of a person in police custody to give the police the access code to their mobile phone.
Privacy protection and criminal law: arguments arbitrarily dismissed
As a preliminary matter, the Constitutional Council issued a decision marked by several elements quickly dismissed from the debate. Not upheld in its referral ruling, the Constitutional Council did not dwell on a pertinent argument raised by the applicant, namely that a telephone access code is not a secret encryption agreement for a cryptographic method.
The law would only target operators and service providers, and not users, who are already covered by the provisions of Article L871-1 of the Internal Security Code.
Similarly, the infringement of privacy and the confidentiality of correspondence are not taken into account, as interference with individuals’ private lives has already been validated by the Council when carried out under the supervision of a judicial authority.
Finally rejecting an argument concerning the applicability of the law of June 3, 2016, the decision focused on cryptography and the necessary balance between public order and respect for the rights of the defense.
Refusal to provide one’s phone number: Expanded powers and minimal restrictions
Integrated into national law through the laws of April 14, 2011, and May 27, 2014, the “right to silence,” or the right of any arrested or detained person to remain silent, is regularly reaffirmed by national and European courts.
According to some legal scholars, the Constitutional Council’s decision strikes a perfect balance between respecting the individual’s right to silence and granting investigative services the broadest possible means to gather evidence in order to uncover the truth.
The Council also guarantees the proportionality of the measure by making this request subject to several conditions.
It thus requires that the investigation or inquiry “must have made it possible to identify the existence of data processed using cryptography that could have been used to prepare, facilitate, or commit a crime or offense,” or that its objective not be to directly obtain a confession or admission of guilt.
The right to remain silent, privacy, and freedom of communication are at the discretion of an investigator
This decision remains highly questionable. The Constitutional Council’s particularly broad interpretation of the proposed text contrasts sharply with the preparatory work on the text.
The Prime Minister’s representative stated at the hearing that “the only interpretation” allowing Article 434-15-2 to be constitutional was “the one that excludes the application of this law to individuals suspected of having committed an offense themselves.”
The association of a phone unlock code with the provisions of Article 434-15-2 of the Penal Code would, by extension, include a computer password, email address, or social media password, which cannot therefore be considered unrelated to privacy and its protection.
The safeguards proposed by the Council are equally troubling. In fact, only an indication “likely” to suggest that the device—phone, tablet, or computer—is necessary to request access.
A criminal offence that undermines respect for privacy
In a hyper-connected society, there will be a presumption of the systematic existence of data “likely” to be linked to the commission of an offense, assessed solely at the investigator’s discretion.
Similarly, no grounds are offered as a legitimate objection to a request by an investigator, for example, when the phone contains information subject to professional secrecy—lawyers, doctors, journalists.
The numerous questions and inconsistencies arising from the legality of this article of the Penal Code necessitate a degree of caution until its interpretation by the Criminal Chamber of the Court of Cassation, or even the European Court of Human Rights.
In the meantime, today, a person placed in police custody has the right to remain silent but will be prosecuted if they do not give the police access to information that could constitute incriminating evidence against them.
With the resurgence of the culture of confession, what remains of the right to silence?
