How and why it is easy for the police officers to access data on a phone

If you followed the Black Lives Matter protests during the past months, you might have come across some influencers or even parliament representatives sharing these types of information.

In this image, one information particularly strikes out to a law student: the “don’t bring your phone without first turning off Face/Touch ID”. Didn’t that jump out at you? Of course, this was posted by Alexandra Ocasio-Cortez, so you might think this is only relevant in the US. As it turns out, this can also affect you elsewhere! In the Netherlands, in February 2019 a court of first instance ruled that a police officer was allowed to take the thumb of a suspect and place it on the smartphone to unlock it and secure the information/data that it contains in order to facilitate an investigation.

From this, many questions arise. This article will try to shed light on the following ones. First, when can the police officers do this? What principles of criminal procedure can these actions potentially infringe? What do those principles aim to protect?

In 2017, in the “Smartphone” judgement, the Supreme Court of the Netherlands ruled that when a suspect is arrested and his belongings are seized, the investigating officer does not require prior judicial review or intervention of the public prosecutor (basically, without review from any higher authority that would normally be necessary for a police officer to hack into your computer or cell phone in general) in order to obtain access to data stored or available in the seized good/ phone. This means that when an individual is arrested for whatever reason and a phone has been seized during the arrest, the police officer does not need any authorisation by higher authorities to access data. Why is it so?

If the infringement of privacy related to the investigation can be regarded as limited, some very broad articles (art 94,95,96 Wetboek van Strafvordering) give the police the authority to access the data on a phone seized during arrestation. This may be the case if the investigation simply consists in consulting a small number of certain data stored or available on a smartphone. If that investigation is such that it provides a more or less complete picture of certain aspects of the personal life of the suspect, then the previously mentioned article is not a sufficient legal basis to authorize such intrusion. (but… where do we draw the line?). This may in particular be the case when it concerns the examination of all data stored or available on the smartphone.

The Court justified the action (i.e. placing the thumb of the suspect on the phone), declaring that it complied with the principles of subsidiarity and proportionality considering the seriousness and nature of the suspicions against the suspect, the lack of his cooperation in unlocking the iPhone and the justified expectation by the investigating officers that the iPhone contains relevant data for the investigation. In other words, the intrusiveness was proportionate to the nature and seriousness of the suspicion against the suspect and because a less drastic means of unlocking the iPhone was not available. In the precedent at hand, the reporter put handcuffs on the suspect and then placed the thumb on the iPhone. This led to the conclusion that a forced access to a smartphone with the use of the suspect's fingerprint is lawful in given circumstances. In addition, the fingerprint was obtained with a very low degree of coercion.

Unlike the situation where the suspect is forced to provide the access code of his phone, which requires a statement from the suspect, placing the suspect's thumb on his iPhone does not, in the opinion of the Court, infringe the nemo tenetur- principle, the right to not incriminate yourself. Let us go through this. First, simply put, this principle consists in not having to be forced to give information that could be held against oneself in court. You might think though, that being forced to give a thumb to the police officers to help them hack a phone is self-incriminating and illegal then, based on the definition. However, the European Court of Human Rights (a court that holds major precedents when it comes to criminal procedure) drew a distinction between information that is will-dependent and will-independent. The latter are inter alia, urine, blood, fingerprint. A classical example is the one of Jalloh case where the German police force forcibly extracted a bag of cocaine hidden in the suspect’s rectum (Jalloh case). The court concluded that the existence of the bag of cocaine was will-independent. In other words, the police can forcibly extract incriminating information/objects from the suspect if the object’s existence is not dependent on the will of the suspect. The former is everything that is not will-independent. Going back to the fingerprint, its existence is not dependent on the will of the suspect. Therefore, forcibly putting the thumb of the suspect on the phone does not go against the principle of non-self-incrimination because the existence of the fingerprint is not will-dependent. In the contrary, the existence of a log-in code is dependent on the will of the suspect and can therefore not forcibly be extracted from the suspect’s mind. Nemo tenetur is not to be confused with the right to remain silent. The former, includes the right not to be ordered to hand over documents for example, which is much broader than the latter.

After all, reliability is at stake in statements obtained under duress, because these statements were not made in freedom. When pressured, a person is more likely to give in to the interrogator's demands. In addition, the principle of safeguarding the presumption of innocence holds in that the burden of proof lies with the prosecuting authority and that arbitrary unauthorized coercion is not applied.

In conclusion, while you might believe the post of AOC is only relevant in the United States, it could in some situations impact you here in the Netherlands and in some places in Europe.

Female genital mutilation: why a legal prohibition is not enough to eradicate the practice?

As the media’s focus is currently largely on the coronavirus outbreak, some of you might have missed some very good news in the international legal environment. On 22 April, Sudan’s new government has finally outlawed the practice of female genital mutilation. This amendment to Sudan’s criminal code now entails a possible three-year prison term and a fine for anyone performing FGM in the country. This ban on FGM is nevertheless unlikely to be enough to completely eradicate this harmful practice. With this article, we will bring you through an explanation of this phenomenon, which is still culturally deeply enshrined in several African countries. What are the reasons behind this tradition? What are the consequences of it for women? How is it done, where and at which age? All those points will be addressed in order to give you, at the very least, a basic understanding of the many factors that come into play in the process of abolishing such a traditional practice, making a legal prohibition a first step to attain this goal, but certainly not a sufficient and inherent one.

The most widely used definition of FGM states that female genital mutilation comprises all procedures involving partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons. It has been classified into four categories. Type I refers to the partial or total removal of the clitoris and/or the prepuce. Type II is the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora (excision). Type III is the narrowing of the vaginal orifice with the creation of a covering seal by cutting and apositioning the labia minora and/or the labia majora, with or without excision of the clitoris (infibulation), while type IV refers to all harmful procedures to the female genitalia for non-medical purposes, such as piercing, incising, pricking, etc. FGM is carried out mostly on young to teenage girls, but it can also be performed on adult, married women, depending on the cultural and regional setting. It is mostly done by traditional circumcisers, but medical settings are increasingly provided in order to reduce the various risks of the procedure. These risks are many, including but not restricted to severe pain, excessive bleeding, infections, as well as urinary, vaginal, menstrual, sexual and psychological problems, increased risk of childbirth complications, and even death. To give a bit of an overview, the number of girls and women on which types I, II and III of FGM has been carried out has been estimated to be around 100 to 140 million, reported in 28 countries in Africa, as well as in a few countries of Asia, Middle East and Central and South America. Why is it the case that FGM is still so widely practiced in the world?

The reasons are explained through various socio-cultural factors, which may vary over time and from one region to another. Probably the most obvious one is that FGM in these countries is so deeply enshrined culturally speaking that it has become a social convention and norm. It means that not perpetuating the practice which has been universally unquestioned since, in some countries, the Antiquity, could lead to social rejection, and it is specifically this fear of not being socially accepted which lead to the continuity of the tradition. This is why FGM, where it is widely practiced, is often also supported by women. The social benefits of perpetuating the norm outweighs the harm it inflicts. Next to the social norm incentive, culturally speaking, FGM is very often considered as a necessary rite to raise a girl and prepare her for the transition from childhood to adulthood and marriage. Sexual and purity reasons may be found as well, notably with FGM of type III where the vaginal opening is covered or narrowed, as a means to ensure premarital virginity and marital fidelity. Indeed, this type of FGM will make sexual intercourse hurtful and impossible to hide. It can also be associated with cultural ideals of femininity, as the girl is considered ‘cleaner’ after removal of genital parts seen as ‘unfeminine’. Interestingly, the practice can also be carried out for religious reasons, even though no religious support for FGM can be found in religious scripts. FGM also persists through the various figures of authority (political, religious, medical, family, etc) promoting the practice.

From a legal point of view, FGM has been recognized by several international and regional legal instruments, as well as consensus documents, as a harmful practice and a violation of various human rights of girls and women. They include the principles of equality and non-discrimination on the basis of sex, the right to life (in case the procedure results in death of the girl/women), the right to freedom from torture or cruel, inhuman or degrading treatment or punishment, and the right to the highest attainable standard of health. Specific attention shall be given to the violation of the child’s fundamental rights. As their status make them more vulnerable and in need of the care and support of their parents, special protection is afforded to children through human rights law by demanding the parents, when making a decision on behalf of their child, to take into consideration the best interests of the child. In the specific case of FGM, the parents therefore perceive that the benefits of the practice outweighs the negative consequences and risks it entails for their girl. However, the practice is an irreversible one, meaning that it does not only deprive the child to be genitally intact, but it also deprives the future adult of the same opportunity. The temporary lack of capacity to give an informed consent cannot, in the eyes of human rights law, gives the right for the parents to make a decision on a permanent alteration of their child’s body. The Convention on the Rights of the Child, consequently, will never consider FGM as being in the best interests of the child, even when the girl actually consented to it, as it considers the child’s judgment being biased by the social pressure of the tradition, the family, and all other reasons lying behind the procedure mentioned above. The fundamental right to participate in cultural life and freedom of religion cannot therefore be invoked as a justification for FGM, as these rights can still be limited in case they violate fundamental rights and freedoms of others, which has been demonstrated here. In this regard, many human rights treaty monitoring bodies have called upon states to take appropriate and effective measures, as well as reporting information about these measures taken to the Committee on the Elimination of All Forms of Discrimination against Women, with a view to eradicating FGM.

However, even if some countries such as Sudan have outlawed FMG, and that international legal instruments have recognized FMG as a violation of fundamental rights and freedoms of girls and women, this is far to be enough for the practice to be abandoned. Of course, legal measures are important in order to make known of the government’s disapproval, especially if sentences such as a prison-term or a fine are attached to it. In that way, the ban on FMG could act as a deterrent, meaning that it would deter people from practicing FMG primarily by fear of the punishment. But for a law to be effectively enforced when it comes to eradicating a social norm, it will need to be applied in combination with a revision of the various socio-cultural factors described above. These multi-sectoral interventions can be carried out in various ways. In Mali, the practice has shown a declining trend, even if it is not yet outlawed by the government. Instead, FGM has been challenged at the family and community levels. Challenging the discriminatory reasons (need to control female sexuality) and the traditions, with the support of older generations, has been a useful solution in Mali. One significant step as well is educating the girls on their rights, including the right to decide what happens to their body as change can only occur by raising awareness throughout empowering education. In the same line, we need to speak directly about the risks of the practice, and the sometimes-false beliefs behind it, such as the belief that religion demands and supports FGM. Many other solutions have been proposed and have been proved to be effective. What truly matters in this process of social change and eradication is that the action taken must be multi-sectoral, involving different sectors (justice, health, education, etc) and actors (government, nongovernmental organizations, community groups, etc). The action must also be sustained in order to have a lasting impact, and community-led by encouraging a collective choice to eradicate the practice. Only by taking into account the various socio-cultural factors behind FMG and by challenging those, instead of focusing only on a prohibition of the practice, could FMG be ultimately abandoned.

We hope that with this new article, you learnt something that deserves to be known and that you better understand why criminalization of a certain type of behavior is not sufficient in itself to eradicate it. Don’t hesitate to share your insights with us!

The Dutch & marijuana - as chill as it gets?

The Netherlands is often perceived as a liberal country for the policy it has adopted towards marijuana since 1976. Go to Amsterdam and drop by The Bulldog, as recommended by TripAdvisor, or stop by Mississippi when visiting Maastricht. Would it surprise you if we told you that selling weed in the Netherlands is illegal? What if we told you that by growing more than 5 plants at your place you run the risk of the police entering your home under suspicion you might be cultivating weed for another purpose than recreational smoking? The Netherlands suddenly appears less chill than it is perceived by the rest of the world. As a matter of fact, the Netherlands is very contradictory in its policies with regards to weed, but that might be about to change. Why? Let us walk you through the history of this seemingly lenient policy, and the changes that may soon be happening.

In 1976, the Dutch legislators decided to differentiate soft and hard drugs and thereby adopt different measures and sentences depending on whether the offence at stake concerned weed or heroin for example. To do so, it created two different lists. List I encompasses inter alia heroin, cocaine and LSD and List II encompasses weed, hash and some psychedelic mushrooms among other drugs. The government back then mandated a scientific committee (the Baan-Committee) to assess the danger each drug posed based on different criteria such as dependence and the consequences it has on the body and society. From this investigation, it was concluded that list I drugs pose an unacceptable risk on society and the body of the user, as well as a considerable risk of dependence. Weed, categorised under list II, proved to pose an acceptable risk to both society and the user.

By means of article 3 of the Opium Act, the Dutch Parliament has made it illegal to bring marijuana inside or outside, to cultivate, to prepare, process, sell, deliver, supply, transport, to have in your possession or to manufacture weed. So… ipso facto, weed is not legal in the Netherland. Why is it that you can buy it in coffeeshops without the police waiting outside to arrest you then? As a matter of fact, it has to do with the fact that the Netherlands adheres to the so-called opportunity principle of prosecution. This principle entails that the public prosecutor can decide whether they want to prosecute a certain crime that has been committed. Yes, you heard us right: in theory, in the Netherlands if you act in a way that is contrary to the criminal code, you will not per se be prosecuted by the state. This means that only when the public interest is served by doing so, prosecuting is the appropriate approach. The public prosecution service can decide that this year, since there has been a rise in MDMA use, this should be a priority in prosecution. Conversely, the public prosecution service can equally decide to tolerate the selling of a substance, accepting that it does not serve public interest to pursue people who smoke weed for example.

The State very simply publishes on its website the tolerance policy it adopts, explaining that buying weed and selling it is illegal but that they won’t prosecute you for having less more than 5 grams of weed or hash in your possession, or cultivating 5 hemp plants. If you scroll a bit more down those policies, you will see the famous AHOJ-G criteria that the public prosecution service implemented in 1991. The “A” stands for no commercial, “H” for no hard drugs, the “O” for no nuisance, the “J” for no younger than 18 years old kids in the coffeeshop. The last “G” is a controversial criterion, meaning that a coffeeshop cannot have a big quantity of hash/weed in stock (no more than 500 grams). In 2007, the public prosecution service added the new condition that a coffeeshop cannot sell alcohol. The municipalities themselves can even decide to forbid the existence of coffeshops. Currently, 69,7% of the municipalities in the Netherlands have decided to ban coffeeshops from operating.

But wait a minute, doesn’t it look weird to you that selling weed is tolerated but that cultivating it on a commercial scale isn’t? Because yes, big consequences arise from cultivating more than 5 plants, sometimes with up to 6 years of jail! The Supreme Court of the country has even found acceptable some very intrusive measures adopted by the police to detect and trace weed plantations. An example is a case that set a precedent allowing the police to enter your house on the ground of “reasonable suspicion of having a weed plantation” based on the simple fact that, wait for it, the police had a thermal camera flying above some houses and detected that the rooftop of a house was “abnormally warm” and thereby adapted for weed plantation.

But hang in there, because not only is the bringing inside or outside, cultivating, preparing, processing, selling, delivering, supplying and transporting illegal, but the facilitating of those actions, when there is reasonable suspicion to believe that you knew that your actions were facilitating these illegal actions, is also considered illegal based on article 11a of the Opium Act. The police are enforcing this very thoroughly, and since the very beginning of this rule. The first test for the implementation of this law happened in Maastricht. The municipality suspected a former growshop to not have adapted strictly enough to the law and sent the police the very next day after the implementation of article 11a to inspect whether the shop was still facilitating weed plantations. Because the shop was selling all types of instruments mainly used for the cultivation of weed and because the display of the instruments together implied that they were aimed at that specific use, the shop was condemned under article 11a.

All those contradictory policies have been heavily criticised, so much so that it has been announced by the Ministry of Justice that a marijuana experiment will be run around 10 municipalities consisting in ‘Legal plantations’. This experiment will start running Breda and Tillburg among other cities. There, for the years 2021-2025 only ‘legally harvested weed’ will be sold in the coffeshops. Surprisingly, the coffeeshops have not been too hyped about this. They fear the legally available weed might not be as financially advantageous as the one they illegally buy from abroad. Also, the variety they will have at their disposal will not be as attractive as the ones they find in their unknown markets. No more Royal Cheese for these cities for a while anymore, only puur nederlandse geteelt wiet*.

*pure Dutch grown weed