Law enforcement cannot force a Hamilton County woman to unlock her smartphone as part of criminal investigation because doing so would violate Fifth Amendment rights against self-incrimination, a divided panel of the Indiana Court of Appeals held on an issue of first impression that combined constitutional law with technological advancements.
“A modern smartphone, with its central purpose of connecting its owner to the Internet and its ability to store and share incredible amounts of information in ‘the Cloud’ of online storage, is truly as close as modern technology allows us to come to a device that contains all of its owner’s conscious thoughts, and many of his or her unconscious thoughts, as well,” Judge Paul Mathias wrote in the 43-page majority opinion in Katelin Eunjoo Seo v. State of Indiana, 29A05-1710-CR-2466. “So, when the State seeks to compel a person to unlock a smartphone so that it may search the phone without limitations, the privacy implications are enormous and, arguably, unique.”
The case began in July 2017 when Katelin Seo was charged with invasion of privacy, stalking, intimidation and other charges stemming from the alleged harassment of D.S. As part of the criminal investigation, the state obtained a warrant compelling Seo to unlock the iPhone and giving her the option to unlock the phone and remove the passcode feature, or to change the code to 1234.
When Seo refused to comply, the Hamilton Superior Court found her in contempt, but stayed the contempt finding pending the instant appeal. During oral argument May 1, Seo’s counsel argued that requiring her to disclose her password was the same as requiring her to disclose the “contents of her mind,” a violation of her Fifth Amendment rights against self-incrimination.
The state, however, maintained it was a “foregone conclusion” that Seo knew her passcode and that there were text messages to D.S. on the device, making the Fifth Amendment argument inapplicable.
The appellate panel consisting of judges Paul Mathias, Melissa May and Patricia Riley grappled with the fact that existing Fifth Amendment caselaw focuses on self-incrimination in the context of physical documents, not electronic data, making Seo’s case distinguishable. Mathias, for example, noted data stored on iPhone 7 models is encrypted, meaning that it is indecipherable. That fact proved to be an important part of the court’s analyses that led to the reversal of the order for Seo to unlock her phone.
“…(W)e consider Seo’s act of unlocking, and therefore decrypting the contents of her phone, to be testimonial not simply because the passcode is akin to the combination to a wall safe as discussed in Doe,” Mathias continued, referencing Doe v. United States, 487 U.S. 201 (1988). “We also consider it testimonial because her act of unlocking, and thereby decrypting, her phone effectively recreates the files sought by the State.”
Further, the majority concluded the state is seeking more than the compulsion of Seo’s passcode, but the entire contents of her iPhone through the passcode.
“Thus, for the foregone conclusion doctrine to apply, the State must be able to describe with reasonable particularity the discrete contents on Seo’s phone – e.g., all texts to D.S. created on Seo’s iPhone – that it is compelling her to not only produce, but to re-create by entering her passcode and decrypting the contents of the phone,” Mathias wrote. “This is a burden the State has not met.”
Similarly, the majority held the search warrant did not describe with reasonable particularity the digital information it covered, and in a footnote the court declined “to address whether the issuance of a search warrant is sufficient to meet the State’s burden under the foregone conclusion doctrine… .”
Mathias concluded by noting the considerable differences between paper and electronic records and how those differences make it difficult to apply existing Fifth Amendment caselaw to Seo’s and similar cases. To that end, he created a structure “for resolving decryption requests from law enforcement authorities” and asked reviewing courts of last resort to consider following that structure:
• Requiring the decryption of data should be recognized as data recreation and, thus, strictly limited.
• Law enforcement will have legitimate need of encrypted data in some instances.
• Law enforcement requests that are identified as bona fide emergencies should be supported by “a warrant that describes the other imminent crime(s) suspected and the relevant information sought through a warrant.”
• Law enforcement should be required to seek digital data through third parties in non-emergency situations.
• Fourth Amendment exceptions and state analogues should be inapplicable or strictly limited in “the search and seizure of digital data stored on devices owned or controlled by that defendant, or from ‘Cloud’ subscriptions that defendant owns or uses.”
The majority remanded Seo’s case for further proceedings, noting in a footnote that the prosecution of Seo can still continue despite Tuesday’s ruling. Riley concurred in result, but May penned a 24-page dissent focusing on the fact that law enforcement had already reviewed Seo’s phone when investigating a complaint against D.S., and that review led to the charges against Seo.
“Thus, the police already have proof that the cell phone in question belongs to Seo and that Seo can open it,” May wrote. “Given that those facts are a foregone conclusion, Seo’s act of producing her unencrypted cell phone does not provide an inference of any ‘incriminating testimony’ and, therefore, under the specific facts before us, I would hold Seo’s Fifth Amendment right against self-incrimination is not being violated by the order that she unlock the phone.”
Noting the U.S. Supreme Court has rejected the notion that the Fifth Amendment is intended to protect privacy interests, May said she disagreed with the majority’s emphases on the “trove of … almost always embarrassing, and potentially, incriminating” information kept on cellphones. She also disagreed with Mathias’ encryption argument, opining that “the law ought to treat files on a cell phone – like prior-produced documents sitting in a file cabinet, which do not enjoy Fifth Amendment protection.
“The State’s right to access such a file cabinet will undoubtedly require a Fourth Amendment showing of probable cause to believe the particular evidence sought will exist within that cabinet,” she wrote. “… But the validity under the Fourth Amendment of the order for Seo to open her phone is not before us, and the Fifth Amendment does not require the State to demonstrate in advance ‘the discrete contents’ of the evidence that will be found in a cabinet… .”