Can I refuse to give a phone’s unlock code?

In that case, a drug trafficker refused to give investigators the unlock code for two smartphones he was holding when he was arrested. He was prosecuted for drug-related offenses and also for refusing to disclose a secret decryption agreement, and granted a partial discharge for this offense under article 434-15-2 of the penal code.

The partial discharge was upheld on appeal and the General Prosecutor’s Office appealed on a point of law. The Criminal Division of the Court of Cassation quashed the appeal but the defendant was again acquitted by the referring court of appeal, which held that the unlocking code for a mobile phone is not a decryption convention as defined in the Law of 21 June 2004. Therefore, the offense of refusal to communicate a secret decryption agreement was not constituted.

The Court of Cassation, seised for the second time in the same case, reaffirmed its position in a formal formation. The Plenary clarified that the refusal to give the unlocking code of a smartphone can constitute an offense if the device is equipped with an encryption system associated with the unlocking system of the phone. In this case, the judges misapplied the law by issuing the acquittal without having verified the technical characteristics of the phone and the presence or absence of such equipment. The case is referred back for retrial to another appeals court.