Around the country, state and federal courts are grappling with how to apply centuries-old Constitutional principles to modern technology. Indeed, the issue of compelled unlocking of smartphones is becoming increasingly prevalent with courts split on the answer.
In Indiana, Seo v. State presents the same issue. Simplified, the facts are as follows: Katelin Seo was charged with theft, stalking, intimidation and harassment of D.S. The police confiscated her iPhone upon arrest and obtained a search warrant. Because the phone was locked, the state requested and the trial court ordered Seo to unlock her iPhone.
Seo refused, invoking her Fifth Amendment right against self-incrimination, and the trial court found her in contempt because “[t]he act of unlocking the phone [did] not rise to the level of testimonial self-incrimination that is protected by the Fifth Amendment.”
The Indiana Court of Appeals reversed the trial court’s contempt order, finding it violated the Fifth Amendment. Seo v. State, 109 N.E.3d 418, 440 (Ind. Ct. App. 2018) (the opinion). The Indiana Supreme Court granted transfer, vacating the opinion, 112 N.E.3d 1082 (Ind. 2018).
How the Indiana Supreme Court will decide these issues is unknown, as Chief Justice Loretta H. Rush highlighted, “courts throughout the country that have looked at this [issue] are split pretty much down the road.” Nonetheless, the court’s resolution of this question may have lasting implications for criminal procedure and, more generally, discovery of encrypted electronic evidence.
A Framework for the Future?
Judge Paul Mathias—who co-chairs Indiana’s court technology efforts and whose website bio describes him as being “keenly interested in the intersection of law and technology”—wrote the appeals court opinion and notes that courts “will continue to be faced with issues involving the intersection of the law and rapidly-emerging technology.” Technology, he said, “moves faster than the law,” but “the principles embodied in the Bill of Rights by our Founding Fathers are timeless.”
Much of the appeals court opinion focuses on the testimonial nature of passcodes. But the record is unclear on whether Seo used a biometric fingerprint or password. This distinction seems important; is there (or should there be) a distinction between biometric security and a typed-in passcode?
While the appeals court opinion recognizes that “compelling a person to do something that displays a physical characteristic that might be incriminating” isn’t protected, Judge Mathias says the reasoning is “outdated and ironic when compared with the current, heightened, ‘state of the art’ electronic security provided by physical characteristics such as facial recognition and retinal scans.” However, his view isn’t universally shared by judges. For example, recent decisions from federal courts in Idaho, California, and Illinois have found biometric features testimonial, while courts in Washington D.C. and Minnesota have found the opposite.
Judge Mathias writes that employing Fifth Amendment analogies originally designed for a paper-based society to compare smartphones to wall safes “stretches these analogies beyond the breaking point.”
Inviting the Indiana Supreme Court (and, ultimately, the U.S. Supreme Court) to create more modern analogies, the appeals court opinion’s final section sets forth a framework for resolving these compelled decryption requests, suggesting that requiring a defendant to decrypt digital data is a “coerced recreation of incriminating evidence” that should be strictly limited.
Indiana’s Supreme Court to Weigh In
After granting transfer, the Indiana Supreme Court invited participation by amicus curiae. The ACLU and Electronic Frontier Foundation jointly submitted a brief on Seo’s behalf, while Utah and seven other states submitted a brief on Indiana’s behalf. The court heard oral arguments on April 18, and its decision will be forthcoming.
Whether the Indiana Supreme Court agrees with Judge Mathias’ framework remains to be seen, but several justices did ask about its feasibility. During oral argument, for example, Justice Steven H. David said the appeals court opinion suggested a path for the state short of what transpired in this case and, though he recognized it wasn’t the state’s position, asked, “What is so problematic in the suggestions [Judge Mathias] made?”
In considering a specific rule to adopt, Chief Justice Rush asked Seo’s attorney what level of particularity the state should be required to show to balance the state’s need with a defendant’s Fifth Amendment right. Seo’s counsel responded that the foregone conclusion exception, a limited exception to the general Fifth Amendment protection against self-incrimination, should never apply to compel decryption because:
- compelled decryption is pure testimony,
- decryption of digital devices is totally unlike the act of producing documents, and
- even if decryption were an act of production, the state failed to describe the phone’s contents with particularity as required for the foregone conclusion exception to apply.
But the state argues that (1) providing a passcode or biometric feature is not testimonial and (2) even if such information has testimonial aspects, compelling Seo to unlock her phone doesn’t violate the Fifth Amendment because her knowledge of the password (not the phone’s contents) and her control of the phone were a foregone conclusion.
On this, Chief Justice Rush pushed back, remarking that smartphones contained “potentially millions of files” and asking the state’s attorney whether there was “one single item in today’s society that contains more incriminating evidence than a cell phone.”
Justice David—noting Seo’s criminal case had since been resolved—expressed concern about the continued need to access Seo’s phone, suggesting the state was seeking “carte blanche to look through [it] for something else that they want to prosecute.”
Justice Mark S. Massa, however, summarized the State’s argument, saying “protection from government overreach will lie in the Fourth Amendment, and not in the Fifth” (notably, Seo hasn’t yet raised any Fourth Amendment arguments).
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Stephen E. Reynolds is a partner in Ice Miller’s Litigation Group, and co-chair of the Data Security and Privacy Practice. Stephen frequently advises clients on complex matters involving data security and privacy laws and serves on the board of directors of the International Association of Privacy Professionals (IAPP).
Derek R. Molter is a partner in Ice Miller’s Litigation & Appellate Groups. In addition to his diverse litigation practice, Derek has handled dozens of appeals in state and federal courts around the country involving issues including—amongst other things—the constitutionality of federal, state and local laws.
Sean T. Dewey is an associate in Ice Miller’s Litigation Group. Sean regularly assists clients with a wide range of commercial matters, including privacy concerns and regulatory compliance.