The Indiana Supreme Court will consider when the government can compel a person to unlock a smartphone as part of an investigation.

The state’s highest court is set to hear oral argument April 18 in Seo v. State, a case that tugs at the tension between constitutional and privacy rights and law enforcement’s investigatory needs. An appeals court, reversing a lower court, ruled that a contempt order forcing Katelin Seo to unlock her phone would violate her Fifth Amendment right against self-incrimination.

Courts around the country have split on the question of when compelling someone to enter their passcode to unlock a device could violate the Fifth Amendment. Legal professionals are looking to see how the Indiana high court will rule.

“In light of the lower court disagreement, the U.S. Supreme Court is likely to take on this issue in the next few years. In the meantime, state and lower federal courts are grappling with it,” Orin Kerr, a professor at the University Of Southern California Gould School of Law who specializes in criminal procedure and computer crime law, said in an email.

Some courts have ruled that a disclosure of telephone contents isn’t testimonial because it’s known that the information exists under the foregone conclusion doctrine, which is an exception to the Fifth Amendment privilege.

‘Contents of Her Mind’

Seo refused to unlock her smartphone after law enforcement obtained a warrant compelling her to do so in connection with stalking charges against her. An Indiana court found her in contempt and ordered her to disable the passcode function or change the passcode to 1234.

She argued, in appealing the contempt order, that revealing the “contents of her mind” would be a testimonial act that would violate her Fifth Amendment privilege. An appeals court majority ruled for Seo in a split decision.

A modern smartphone “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 D. Mathias wrote for the Indiana Court of Appeals majority. “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 state had argued that the court’s order doesn’t violate Seo’s Fifth Amendment right because it doesn’t compel her to reveal her passcode—only to unlock the phone or change the passcode so the government could access the contents. She previously unlocked the phone for police in a connected case.

The Fifth Amendment is not applicable because the fact that she owns the phone and can open it are “foregone conclusions,” so producing the unencrypted phone isn’t incriminating testimony, Indiana Court of Appeals Judge Melissa S. May wrote in her dissent.

“I believe we must find a path forward that balances the governmental and individual interests without creating a zone of lawlessness from which one citizen may harass another without government intervention,” May wrote.

‘Balancing Act’

The crux of the case is the constitutional “balancing act” between individual rights and society’s need to investigation crimes and punish wrongdoers, Stephen Creason, chief counsel in the appeals division of the Indiana Attorney General’s office, said. “We’re asking courts to keep that in balance.”

A group of attorneys general from eight states, including Pennsylvania and Georgia, wrote an amici brief in support of Indiana, saying the appeals court ruling “misunderstands both the nature of decryption and the object of the Fifth Amendment.” Adopting the appeals court’s reasoning “would render States incapable of executing many lawfully obtained warrants,” the attorneys general wrote.

The Indiana high court “has the potential to impact not just the law in Indiana, but around the country—particularly where, as here, the issue has divided lower courts,” they wrote.

The Electronic Frontier Foundation, and the American Civil Liberties Union and its Indiana chapter, all supported Seo in their own amici brief.

The question in the case has been “coming to a head” for years, said Andrew Crocker, an EFF staff attorney. “It’s just a function of how widespread encrypted devices are.”

The case is Katelin Enjoo Seo v. State of Indiana, Ind., No. 18S-CR-00595, oral argument 4/18/19.