BGH allows cell phone unlocking by forced fingerprinting

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Under certain circumstances, the police may unlock a cell phone by placing a suspect's finger on the biometric imprint sensor, even under pressure. This was decided by the Federal Court of Justice (BGH) in a recently published ruling from March 13 (Ref.: 2 StR 232/24). However, conditions must be met. A court order is required that expressly authorizes the search and retrieval of cell phones. In addition, proportionality must be ensured. The usefulness of the data for the investigation must therefore justify the serious interference with the fundamental rights of the suspect.

In this long-running case, the defendant worked as an educator in daycare centers until 2017. After he had taken detailed nude photos of a two-year-old girl in this context, law enforcement officers found over 2,300 images of child sexual abuse on several storage media during a search of his home on March 15, 2017. The Munich I Regional Court then sentenced him to a suspended prison sentence of one year and one month. At the same time, it banned the accused from working as a social worker, social education worker, educator, carer and supervisor of children and young people for life.

During the coronavirus pandemic, the defendant worked as a private babysitter despite the ban. According to the decision of the judges in Karlsruhe, he took nude photos of both children while looking after the twin daughters of a family. The defendant had saved some of these on his LG G5 SE smartphone and on his Google Pixel 4a.

Appeal due to lack of legal basis

During the subsequent search on March 12, 2021, the police officers found the two cell phones. As the defendant was not prepared to unlock them voluntarily, according to the Federal Court of Justice. A law enforcement officer ordered that the defendant's right index finger be placed on the fingerprint sensor of the cell phones by direct coercion. In legalese, the measure was implemented accordingly. The unlocked cell phones were given to the "data security officer" who was present.

According to the judges in Karlsruhe, the subsequent analysis revealed "the child pornography material" that later led to the second conviction by the Cologne Regional Court. On the first day of the main hearing, the defendant's defense counsel objected to the collection and use of this evidence and argued that there was no legal basis for the decryption of the two cell phones by police coercive measures. The defendant's freedom from self-incrimination and his right to a fair criminal trial and to informational self-determination had been violated as a result.

The 2nd Criminal Senate of the Court of Justice rejected the procedural objection with which the lawyers of the man who was convicted again asserted a prohibition on the use of the images stored on the smartphones in the appeal. "The acquisition of evidence was lawful," it emphasized. Although the investigators' attempt to gain access to personal data stored on a cell phone fell within the scope of the 2016 EU Data Protection Directive on criminal prosecution, access without consent also constituted a particularly serious interference with the accused's right to informational self-determination. It also violated the right to respect for private life under the EU Charter of Fundamental Rights.

Search as a controllable open measure

However, this does not fundamentally prevent "the forced unlocking of a cell phone using fingerprints", states the Federal Court of Justice. The procedure is at least covered by the Code of Criminal Procedure (StPO) if there is a judicial search order. The directive does not generally stand in the way of the procedure, either. It is a recognized objective that serves the common good, which the European Court of Justice has also seen as such.

The fact that the accused's body can be used as a "key" for unlocking and thus as a means of conviction does – not violate the accused's freedom from self-incrimination, contrary to the opinion of the appeal – according to the criminal division. This only protects against active participation in one's own conviction, but not against tolerating investigative measures. The seizure also took place as an "open measure". This would have enabled the accused to counter this and to monitor, for example by appealing to the courts –.

Specifically, the Federal Court of Justice – like the Higher Regional Court of Bremen and the Regional Court of Ravensburg – before it, refers to Section 81b (1) of the Code of Criminal Procedure as the legal basis. This somewhat dated clause is geared towards identification measures. When the provision came into force, the focus was on comparing fingerprints with crime scene evidence and index cards or identifying people. Smartphones and biometric recognition systems did not yet exist.

The Cologne Regional Court has to do it again

The Federal Court of Justice states that placing a defendant's finger on the sensor of a cell phone is nevertheless covered by the wording of the paragraph. According to this, photographs and fingerprints of the accused may also be taken against their will. Measurements and similar measures may be carried out on them if this is necessary for the purposes of the criminal proceedings or for those of the identification service. The unlocking of a cell phone with a finger cannot be distinguished from the expressly permitted taking of fingerprints for dactyloscopic comparative examinations.

According to the decision, it is also established law that the data stored on cell phones can be seized in accordance with section 94 of the Code of Criminal Procedure. This was also proportionate in this case, as the accused had deliberately used a cell phone as a means of committing the crime. If the offense under investigation is not related to the cell phone or the data suspected on it, or if the forced unlocking is not justified for other reasons, considering the seriousness of the offense. The requirements of the investigation. The means is inadmissible under the Code of Criminal Procedure. Furthermore, the acquisition of excessive and confidential information that is meaningless for the proceedings must be avoided "within the bounds of reasonableness".

The Federal Court of Justice overturned several of the grounds for the judgment and the total sentence imposed by the Cologne judges. At the same time, it referred the case back to another criminal division of the Cologne Regional Court for a new hearing and decision. It is therefore still too early for a potential constitutional complaint.

(nen)