Indiana Supreme Court says woman did not have to unlock smartphone for policeA Carmel woman who was held in contempt when she refused to unlock her smartphone for police during a criminal investigation is protected by the U.S. Constitution, the Indiana Supreme Court ruled Tuesday in a decision that could affect how law enforcement uses technology to gather evidence.The court reversed the contempt order against Katelin Seo, finding that forcing Seo to unlock her iPhone for police would violate her Fifth Amendment right against self-incrimination. "By unlocking her smartphone, Seo would provide law enforcement with information it does not already know, which the State could then use in its prosecution against her," the court said. "The Fifth Amendment’s protection from compelled self-incrimination prohibits this result."The case underscores larger issues of privacy and technology, Beth Cate, an Indiana University law expert on constitutional law and data governance, told IndyStar.
"It's an issue where technology really has, very forcefully, presented this difficult social issue," she said. “You don't want to give the police unlimited ability to search your life just by being able to get into your cellphone. There's got to be some limits. And there usually are."
Smartphone case: She wouldn't unlock her iPhone for police. Does the U.S. Constitution protect her?In a statement Tuesday, Indiana Attorney General Curtis Hill said his office respectfully disagrees with some aspects of the court's decision and is reviewing it to determine "how it will impact future criminal investigations involving electronic devices."
"Our argument in this case has always been that police followed the proper procedures to obtain a court order and Ms. Seo should have also followed proper court procedures rather than first openly flaunting her contempt for the trial court," the statement said.
What were authorities looking for?The case began with charges of harassment and stalking in connection with two cases against Seo in 2017. Hamilton County authorities wanted the pass code to her iPhone 7. But Seo, through her attorney William Webster, refused, arguing that by unlocking her phone for police, she would essentially be helping them build a case against her.The cases have since been resolved, and records show Seo is now serving prison time in the Department of Correction on an unrelated arson case. Webster told IndyStar last year that authorities never told them what exactly they were looking for on the phone, meaning authorities wanted to search the phone in the hopes of finding incriminating evidence.
Authorities argued that it had already done enough to search the phone. They "independently established" that the cellphone belonged to Seo, that she used it and that she knew the password. They also said the phone had evidence showing that Seo used the cellphone to talk to the male victim.
Advocates for the state's side argued that a ruling in favor of Seo could have serious consequences for public safety, while proponents of Seo's position emphasized the interest of privacy and constitutional protections.
Webster said Tuesday that the decision is a "landmark case for civil liberties and individual privacy rights.""Today the Indiana Supreme Court found that forcing individuals to unlock electronic devices violates their 5th Amendment right against self-incrimination," Webster's firm said in a statement to IndyStar.
Can police force you to unlock your smartphone?When Seo declined to provide her pass code, Hamilton County Sheriff's Office Detective William Inglis asked the court to compel her to unlock it and, if she refused, subject her to the contempt powers of the court, according to court documents. Police already had Seo’s phone, authorities said. They just needed the pass code to gain access to its contents, which police believed could contain evidence. A Hamilton County judge granted two separate search warrants — one granting the forensic download of the device and another compelling Seo to remove or give the pass code, according to court documents.
But Seo still said no.
After her refusal, a Hamilton County judge found Seo in contempt and ordered her jailed until she complied with the order by unlocking the phone and either disabling the lock function or changing the pass code to 1234, according to court documents.
Webster later filed a motion to stay the contempt finding and appealed the ruling.
By the time the appeals court issued its opinion in favor of the defense in August 2018, the stalking cases against Seo had been resolved with plea agreements.
But even though the cases were resolved, the question of whether Seo, or a person in her position, was legally required to unlock their smartphone for law enforcement had not yet been settled.The U.S. Constitution protects a person against self-incrimination. Under the Fifth Amendment, the government can't compel people to be a witness or testify against themselves.
Although Seo wasn't forced to say anything, she argued that in seeking Seo’s password to unlock her iPhone, authorities wanted the “contents of (Seo’s) mind” to compel her to help police search her phone for potentially incriminating evidence. The password is essentially forced testimony, Seo said.On Tuesday, the Indiana Supreme Court, in a 3-2 decision, agreed. Chief Justice Loretta H. Rush wrote the majority opinion.The court called the production of an unlocked smartphone "testimonial and entitled to Fifth Amendment protection," unless the state can prove an exception to the Fifth Amendment called a "forgone conclusion."
Under the forgone conclusion doctrine, cited in a brief filed by the state in 2018, a compelled act doesn't violate the Fifth Amendment if it doesn't provide authorities with any additional information.In this case, the Supreme Court said, the state failed to demonstrate that any particular files existed on Seo's phone or that she possessed those files. "Detective Inglis simply confirmed that he would be fishing for 'incriminating evidence' from the device," the decision said.
The decision includes testimony from Inglis that he wanted to search Seo's phone to confirm his theory that she was using an application or internet program to disguise her phone number:
There are numerous, and there’s probably some that I’m not even aware of, numerous entities out there like Google Voice and Pinger and Text Now and Text Me, and I don’t know, I don’t have an all-encompassing list of them, however if I had the phone I could see which ones she had accessed through Google.By allowing police to access her phone, Seo would be providing the state with information that it doesn't already know, the court said. This is prohibited by the Fifth Amendment's privilege against compulsory self-incrimination.
To hold otherwise would be a “death knell for a constitutional protection against compelled self-incrimination in the digital age," the court said, quoting a 2019 Massachusetts Supreme Judicial Court decision on a similar issue.
In a decision [PDF] that could put an end to a practice that civil-liberties groups have decried as illegal for years, the US Court of Appeals for the Second Circuit noted that the way the Feds today use a database of seized communications “would be at odds with the bedrock Fourth Amendment concept that law enforcement agents may not invade the privacy of individuals without some objective reason to believe that evidence of crime will be found by a search.”.
U.S. Supreme Court could weigh in on issueAs technology advances, it's difficult to say how such a ruling would apply to biometric fingerprints or facial recognition, said Laurent Sacharoff, a law professor at the University of Arkansas and expert in criminal law and cybercrime. "Obviously by entering a password, you use your mind to recall it," Sacharoff said. "That's all cognitive activity. Whereas (with) a fingerprint, you don't have to use any cognitive activity because they can just force your thumb on it if they want. You're not even doing an act at all at that point, or if it's your face, they can hold the device up to your face."
It may not be a compelled act like providing information, Sacharoff said. "It depends on how they do it. If the suspect is sitting in the police station and, say, the police hold the phone up to his face and that opens it up, they haven't required the defendant to do anything at all."
Sacharoff supports the court's position and said that the larger context is the debate between courts on what is being communicated implicitly when people opens their device and enter a password.Other courts, like the Massachusetts Supreme Judicial Court, have come to different conclusions than the Indiana Supreme Court. The Massachusetts court, in a case about a defendant who also would not enter his password into a cellphone seized during his arrest, determined that the defendant's knowledge of the password was a forgone conclusion, according to the decision.
The differing views on the matter make it likely that the U.S. Supreme Court will eventually weigh in, said Cate, a professor at the O'Neill School of Public and Environmental Affairs at Indiana University Bloomington.
"I think all of this is happening under a much bigger kind of umbrella of trust and mistrust issues," she said, "and concerns about whether or not on the one hand we would be enabling too much government intrusion and surveillance into our private lives."On the other hand, Cate said, is living in a world where criminals can simply lock up evidence of their crime, an argument that was made by states that filed a brief supporting Indiana's position in the case. Hill said in his statement Tuesday that the U.S. Constitution protects individual privacy but also recognizes "society's equally important interest in investigating crime and holding criminals responsible."
"Courts all across the county are struggling with how to strike the right balance when modern technology is concerned," Hill said.Contact IndyStar reporter Crystal Hill at 317-444-6094 or [email protected] Follow her on Twitter: @crysnhill.