A consequential Indiana Court of Appeals ruling on an issue of first impression last month marked one of the first times state courts have been asked to reconcile civil rights with advancing technology. The question: considering the personal nature of the contents of a person’s smartphone, can an individual be forced to unlock a smartphone without violating the Fifth Amendment?
In the case of Katelin Eunjoo Seo v. State of Indiana, 29A05-1710-CR-2466, the court answered that question with a “No,” finding Katelin Seo could not be compelled to unlock her iPhone 7 as part of a criminal stalking investigation against her. Doing so, the court found, would be testimonial and, thus, a violation of her Fifth Amendment right against self-incrimination.
But the Aug. 21 ruling far from settles the issue. Judge Paul Mathias penned the 43-page majority decision while Judge Melissa May authored a 25-page dissent. The third panel member, Judge Patricia Riley, concurred in result with Mathias’ opinion, meaning the majority ruling failed to receive true support from two of the judges.
That reality begs Indiana Supreme Court review, Indianapolis criminal defense attorney Bradley Keffer said, and the state has already announced plans to file a petition to transfer. But even without a clear consensus, Keffer said the Seo ruling begins an important conversation in the judiciary about how technology should factor into constitutional analyses.
“The court truly began to wrestle with this sort of application of the Fifth Amendment,” he said. “… Generally speaking, courts are loath to wade into … the constitutional implications associated with advances in technology.”
Contents and conclusions
Seo began when Katelin Seo was charged with invasion of privacy, stalking, intimidation and other charges related to her alleged harassment of D.S. The Hamilton Superior Court issued a warrant for Seo to unlock her cellphone and provided an option for her to remove the passcode feature or change the passcode to 1234.
Seo refused, and her attorney, William Webster, argued Fifth Amendment self-incrimination protections blocked law enforcement from compelling her to comply. Asking a citizen to unlock her smartphone is the same as asking her to disclose the “contents of her mind,” Webster said. The state, however, relied on the foregone conclusion doctrine to support its position that the Fifth Amendment was inapplicable.
Specifically, the state claimed it was a foregone conclusion that Seo knew her passcode and that there were text messages to D.S. on the device. May focused on that argument in her dissent, noting that before the warrant was issued, law enforcement had already viewed Seo’s phone and had seen her messages to D.S.
“Given that those facts are a foregone conclusion, Seo’s act of producing her unencrypted cell phone does not provide an inference of an ‘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,” May said.
Mathias, however, agreed with Webster’s “contents of the mind” argument, relying on Doe v. United States, 487 U.S. 201 (1988), to liken the unlocking of the phone to providing the combination to a wall safe — an act protected by Fifth Amendment self-incrimination prohibitions in Doe.
“(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,” he wrote. “We also consider it testimonial because her act of unlocking, and thereby decrypting, her phone effectively recreates the files sought by the state.”
Wading into tech
Mathias’ reliance on the concept of encryption underscores the fact that Seo’s case marked a significant departure from traditional Fifth Amendment analyses, which generally focus on paper documents, Keffer said.
All iPhone 7 data is encrypted when locked. However, unlocking the phone decrypts its data, making it possible to read. That fact, Mathias said, means unlocking the phone is the same as “creating” its contents, an act that is inherently testimonial.
But May also dissented on that point, noting Seo was being compelled only to unlock the phone, not “to download new Apps or to write and send new text messages.” Thus, the data the state was seeking was data that already existed.
“As such, decryption does not use the contents of Seo’s mind to create new information,” May said. “Instead, pre-existing information is simply being rendered intelligible.”
Speaking with Indiana Lawyer after the ruling, Webster acknowledged courts nationwide have been split on similar issues, and the Indiana Attorney General’s Office said May’s dissent was more in line “with the majority of jurists and scholars around the country.” The true dichotomy in this case, Keffer said, is the struggle between applying the law to specific technological advances and developing broader legal principles that can be applied to future technological advances.
“It’s a tug of war,” Keffer said. “Are we going to be creating timeless opinions like the opinions of old, or are we going to be bouncing back and forth as technology advances?”
Fourth Amendment questions?
Aside from grappling with the role technology plays in Fifth Amendment analyses, the court’s opinion also tiptoed around Fourth Amendment considerations that underly Seo’s case, yet were not specifically at issue on appeal. The majority held the warrant for Seo’s phone did not describe with reasonable particularity the digital information it covered, while the dissent said that level of particularity is not required under the Fifth Amendment.
But the breadth of search warrants is certainly an issue to be considered under the Fourth Amendment, and Webster acknowledged the opinion subtly questioned his decision not to raise a Fourth Amendment argument. His strategy, though, was to take a simplistic approach to his client’s case and determine whether her right to remain “silent” applied here.
“I wanted to get through the Fifth Amendment, and if it (unlocking the phone), doesn’t have that right, then I think it steers right into the Fourth Amendment,” Webster said.
Though the breadth of the search of the phone wasn’t explicitly at issue in Seo, Mathias ended the majority opinion by laying out a framework he urged courts of last resort to follow when “resolving decryption requests from law enforcement authorities:”
• Requiring that data decryption be recognized as data recreation and, thus, strictly limited;
• Recognizing that law enforcement will have legitimate need of encrypted data in some instances;
• Requiring that law enforcement requests in bona fide emergencies be supported by a warrant describing other imminent crimes and the relevant information that is sought;
• Requiring that law enforcement to seek digital data through third parties in non-emergency situations, and;
• Recognizing that Fourth Amendment exceptions and state analogs are inapplicable or limited when dealing with “the search and seizure of digital data stored on devices owned or controlled by the defendant, or from ‘Cloud’ subscriptions that defendant owns or uses.”
Putting such a framework in place recognizes that technology-related constitutional cases will be fact-sensitive, so courts should consider the particularities of each case when deciding when technological data can be compelled, Webster said. But whether that analysis sticks will likely be decided by the state’s five justices, Keffer said.
The state’s appellate brief is due Sept. 20.•