Does a police officer have the right to force you to unlock your mobile phone? Let us say it right away, the question is not settled. But in the courts, especially in Val-de-Marne where the prosecution willingly pursues the "refusal to hand over to the judicial authorities or to implement the secret convention of deciphering a means of cryptology", the judges do not hesitate to punish this offense punishable by three years in prison and a fine of 270,000 euros.
Latest example on Thursday afternoon. A youth from Créteil, who appeared for this offense and (especially) because he had 96 grams of cannabis on him, was fined several days. To support his requisitions, the prosecution has drawn a judgment from the Court of Cassation last month.
Battle of Jurists
However, in April 2019, the Paris Court of Appeal, in a similar situation that still occurred in Val-de-Marne at the Kremlin-Bicêtre, was not at all of the same opinion. She felt that a police officer had no right to force you to unlock your cell phone. The court had put forward two arguments. First, there must be a judicial requisition. Clearly, a magistrate must ask the police. Second, locking a laptop isn't encryption.
Who is right then? The Court of Appeal, according to whom we have no right to compel someone to unlock their cellphone, or the Court of Cassation which says the opposite? Yazid Benmeriem, the lawyer for the young man convicted Thursday afternoon in Créteil, obviously has an idea on the issue. "This judgment of the Court of Cassation does not respond to the arguments of the judicial requisition and encryption / locking", he observes.
The judgment, however, dismantles a third argument put forward by another lawyer who considered that unlocking his phone was as if one was self-incriminating, which is prohibited by law. So, if this last argument is broken, the other two remain unanswered, concludes Yazid Benmeriem.
"Telephone encryption is a bit of slang today", according to a judicial source
In short, this is what led this lawyer to appeal the judgment last Thursday. "He is right that the justice system still does not rule on the requisition and encryption / locking, analyzes a judicial source. On the other hand, one can also consider that the police officer, if he is an officer of the judicial police, does not need the requisition of a magistrate. And then consider that locking your phone is not encrypting a message, it is a bit far-fetched. It's a bit like slang. At the time, it was a way not to let the police understand you. Phone encryption is a bit of slang today. "
Behind this debate in courthouses, there are obviously two fundamental issues. For investigators, rummaging in the phone of a suspect ("or that of his girlfriend or even that of the witness of an offense", specifies the judicial source), it is a huge asset to resolve a case. For lawyers, it is above all a violation of individual freedoms.
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"We must not forget that the article of the penal code we are discussing dates from 2001, just after the September 11 attacks," emphasizes Yazid Benmeriem. Today, the public prosecutor's office uses it for small narcotics cases. "