‘Police often use coercion to unlock biometrically secured phone’
Police often use coercion to unlock biometrically secured phones of suspects, employees of the Digital Investigation Team (TDO) have told researchers at Dialogic, the researchers say in an evaluation report of the Innovation in Criminal Procedure Act. Exact figures on how often coercion is used are not known, according to Justice and Security Minister Van Weel.
“It happens that a cell phone can only be unlocked using biometric data of the user of that device. In those cases, the police may ask the suspect to unlock his device. If the suspect does not want to cooperate, the police may use coercion,” the minister said, pointing to a 2021 Supreme Court ruling. The minister was responding to parliamentary questions about a European Court of Justice ruling that police may search data on phones even for minor crimes.
The power to break biometric security through coercion has been included for now in Article 558 of the Code of Criminal Procedure through the Innovation Act on Criminal Procedure. The purpose of this act is to gain experience with a number of topics in the new Code of Criminal Procedure. The Innovation in Criminal Procedure Act led to five pilot projects that Dialogic evaluated at the request of the Ministry of Justice and Security’s Scientific Research and Data Center (WODC), which also looked at breaking biometric security on phones.
The power of Article 558 Sv can be applied in any case where there is a suspicion. At the request of the researchers, the police looked at how often the power for two other articles (556 and 557 Sv) was applied or considered. This yielded 23 cases, 13 of which involved actual application of the power involving coercion. “However, this does not provide a reliable picture of the extent to which the power is applied, since according to the internal working arrangements, the application of Article 558 Sv did not have to be recorded separately,” the researchers said.
“TDO officers have indicated that it is common for a biometric security device to be undone against the user’s will. This is more common, according to some, than the use of the powers of Articles 556 and 557 Sv. The power is often used to gain access to a device in which research needs to be conducted on historical data,” the researchers add (pdf).
Fingerprint-based mold
The researchers write that securing phones with a fingerprint is less common. “Suspects often intentionally do not secure their devices with fingerprints because this method of security can be undone relatively easily. Security with an iris scan is the least common.” When a device is secured with a code or biometric, the suspect is first asked to unlock the phone. If the suspect refuses to cooperate voluntarily, the order to provide access to the device can be issued under Article 125k Sv.
Also, the investigators reveal that it is not always easy to force someone to unlock a fingerprint-protected smartphone. “Because the suspect may resist, for example by deliberately placing the finger in the wrong place. If the suspect is handcuffed, it is easier to place the finger on the smartphone. This may be grabbed by the investigating officer.”However, it is not always necessary to infringe on the suspect’s bodily integrity, the researchers write: “When a suspect’s fingerprints are recorded in a police database, they can be etched into a mold, mimicking the suspect’s finger. In the case of security with a face or iris scan, it is conceivable that the smartphone could recognize the face in question when the smartphone is held in front of it.” Further technical details on this method are not given.
Inclusion in new code
The researchers argue that being able to breach biometric security can add value to detection. “There is a need in some cases to be able to apply this power. The degree of coercion applied is limited,” they conclude. The researchers note that, strictly speaking, the power is not an improvement to criminal procedure because it could already be applied prior to the pilot under Supreme Court case law.
“The codification of the power in the new code does have added value because it creates normative clarity. It is therefore desirable that the power be included in new code,” the researcher added. Minister Van Weel says he will respond to the evaluation report before the end of the year
Translated by Deepl.com
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