Over the past few years, the mobile phone has transformed from a simple communication device into a vital tool closely linked to the lives of its owners, especially politicians, the wealthy, businessmen, brokers, intermediaries, and, of course, the criminals and smugglers.

This is due to the financial information it contains, secret account details, a large amount of personal photos, and other information known only to the device owner, which can be accessed by using the face or fingerprint, or a PIN. It is not an exaggeration to say that the first thing most people think of when danger strikes is to flee...with the phone, not with their money and legitimate assets.

But what if the device owner suddenly dies? The right to access a deceased person’s phone, including the use of his fingerprint or other biometric means, is subject to legal privacy considerations that vary from country to country, but share a common ground. Before unlocking a phone, it is essential to have a death certificate and proof of the applicant’s rights, such as the next of kin or the executor of the will.

Phone manufacturers have the means to access phone information, but this always requires a court order. Some countries consider unlocking a phone using the deceased’s fingerprint a normal practice, as the deceased has no privacy. Based on the secrets that mobile phones now contain, a question was posed to the Fatwa Board at the Ministry of Awqaf regarding the ruling on unlocking a deceased person’s phone by enabling the family or heirs to take the fingerprint or faceprint. Is this permissible under Islamic law, or is it considered a matter of the deceased’s privacy that cannot be disclosed? The Fatwa Board stated that it is not permissible for the deceased’s family or others to take the fingerprint or face to unlock the phone, as it is a place of privacy and is likely to contain defects.

Therefore, it is not allowed to view the phone to protect it and respect its sanctity. If there is a need to unlock the device, it should be done through the judiciary or the relevant security agency.

 As usual, the fatwa is incomplete, lacking precision and comprehensiveness, and is not binding at all. What is meant by the necessity of obtaining judicial or security authority approval? What about the possibility of delaying the burial of the deceased pending a court order? Who will implement and supervise the approval, monitor the process of unlocking the phone, and directly access its contents, with the electronic expertise this may require? What if one of the heirs deletes items on the phone that are not in their best interest or in violation of the rights of those with whom the deceased interacted? What if the deceased’s accounts contain large amounts of money that can be managed immediately via mobile phone and transferred to other accounts, with all the resulting harm to others? What if the phone’s memory contains personal information, such as a second wife and children? How will they be dealt with? Who guarantees the right to contact them, with all the psychological and material harm this entails? The fatwa also granted security agencies the same powers it granted to the judiciary to unlock phones.

This is a frivolity we hoped would not come from a jurisprudential authority, with all due respect to the Ministry of Interior. Further questions and various risks will then be raised, and there will be a need to take action and regulate such a serious matter, rather than leaving it to a jurisprudential authority.

Thus, we call on the Minister of Justice, in his current efforts to regulate judicial matters, to honorably instruct the relevant authorities to prepare a draft law covering this matter and issue a decree in this regard as soon as possible, given the almost daily need for it. This will fill a dangerous legal vacuum, and prevent such matters from being left unregulated which could lead to the loss of rights, violation of privacy, and harm to innocent people.

By Ahmad alsarraf
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