Can a French police officer search your mobile phone?
On Sunday, in an interview on the French TV network LCI, France's interior minister, Bruno Retailleau, discussed his desire to make it possible to search phones of suspected of staying in France illegally.
"I want there to be the possibility of searching phones, because phones are what allow us to see where the foreigner staying illegally comes from,' he said on LCI.
What are the rules about French police looking through phones?
Currently, there are limits on police powers to confiscate and search anyone's mobile phone.
Legal expert Alexis Baudelin told
BFMTV
that, 'searching a mobile phone during a criminal investigation is equivalent to a search of a home'.
An individual stopped by police must first agree to their phone being examined, or a judge must authorise examination of digital data on the phone before a search can be carried out.
The only exception to this rule is if a person is stopped in the act of committing an offence – in which case a digital search of a mobile phone in their possession is authorised without prior consent.
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In such instances, it would be an offence for the individual to refuse to provide an access code if it is required to examine the phone.
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What to do if you are arrested in France
However, the Court of Justice of the European Union established that the judicial authority must prove that it is acting in the 'public interest' when carrying out such a search by proving 'the link between the owner of the mobile phone and the criminal offence,' but also by demonstrating the need to access data on the device for the investigation.
The data that may give rise to the search of a smartphone includes location, photographs or videos, browsing history, but also the content of communications, including stored messages.
However, police must not access 'personal' data relating, in particular, to racial or ethnic origin, or political and religious opinions.
Under Retailleau's proposal, such searches would make it possible to find out 'where nationals (
ressortissants
), illegal immigrants or foreigners staying illegally come from,' by examining messages sent by smugglers in France and abroad.
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EXPLAINED: What are your legal rights as a foreigner in France?
While each country is free to impose its own limits, the Court of Justice of the European Union nevertheless specifies that national authorities must respect 'the principle of proportionality,' hence the need for oversight by an independent court.
You may also be asked to turn on your mobile phone or computer at a border checkpoint, or by security officials at an airport.
The "code français des douanes" also allows for customs officers to '
inspect goods and means of transport and persons
', which has long been interpreted as including mobile phones and laptop computers.
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