Updated November 7, 2022
One person was arrested for possession of narcotics. While in custody, she refused to give investigators codes to unlock two phones believed to have been used in drug trafficking.
This person, prosecuted before a criminal court, was not sentenced for having refused to give his telephone unlocking codes; she was released.
Passwords and encryption conventions allow the protection of data, and their disclosure imposed by the authorities can endanger individual freedom and democracy but also allow the repression of crime.
The Constitutional Council, on QPC where La Quadrature du Net intervenes, judges that the incrimination of refusal to communicate a password is not contrary to the Constitution.
Article 434-15-2 of the Penal Code, in its wording resulting from the law of June 3, 2016 provides:
"Is punished by three years' imprisonment and a fine of €270,000 the fact, for anyone having knowledge of the secret convention of deciphering a means of cryptology likely to have been used to prepare, facilitate or commit a crime or an offence, to refuse to submit said agreement to the judicial authorities or to implement it, on the requisitions of these authorities issued pursuant to Titles II and III of Book I of the Code of Criminal Procedure.
"If the refusal is opposed while the delivery or the implementation of the convention would have made it possible to avoid the commission of a crime or an offense or to limit its effects, the penalty is increased to five years of imprisonment and a €450,000 fine.
Means of cryptology means any hardware or software designed or modified to transform data, using secret conventions or to perform the opposite operation with or without a secret convention. These cryptology means are mainly aimed at guaranteeing the security of the storage or transmission of data, by making it possible to ensure their confidentiality, their authentication or the control of their integrity.
In its judgment of November 7, 2022, the Court of Cassation, plenary assembly, appeal no. K 2183.146, indicates, in its press release:
A " means of cryptology is intended to render information incomprehensible, in order to secure its storage or transmission. A " secret decryption convention allows the clearing of encrypted information. When a mobile phone is equipped with a " means of cryptology », their home screen unlock code may be a " decryption key » if the activation of this code has the effect of clarifying the encrypted data that the device contains or to which it gives access. Therefore, if a mobile phone with these technical characteristics - as is the case with most mobile phones today - is likely to have been used for the preparation or the commission of a crime or offense, 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. If he refuses to communicate this code, he commits the offense of “refusal to deliver a secret decryption agreement ". Therefore, in this case, the decision of the Court of Appeal is quashed and another Court of Appeal is appointed to retry the case.
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