Indiana Supreme Court Chief Asks if Forced Phone Decryption Erodes Fifth Amendment
The Indiana Supreme Court’s top justice appeared to bristle Thursday at Indiana’s view that individuals may not refuse to unlock their phones for law enforcement. “If we say that a citizen can be compelled to unlock their cellphone just based on a warrant … what’s left of the Fifth Amendment?” asked Chief Justice Loretta Rush at oral argument livestreamed Thursday in Katelin Seo v. Indiana (18S-CR-00595). She and other justices wrestled with how to apply analog precedents to a digital age.
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Indiana and several other states argue that restricting law enforcement from compelling suspects to unlock smartphones would create a “zone of lawlessness,” given increasing importance of digital evidence in cases (see 1902050011). States cite an exception to the Fifth Amendment that gives them that right: If the compelled act doesn't give the government additional information, the result is a “foregone conclusion” not protected by the amendment. Privacy advocates reject the foregone-conclusion rationale, saying it has been used only in the context of producing specific, tangible business and financial records, and that in any case the state would have to specifically show it has independent knowledge of all the information that would be disclosed.
“Can you think of one single item in today’s society that contains more incriminating information than a cellphone?” asked Rush. She asked if it isn’t “a fishing expedition” if the state doesn’t specify what content it’s looking for and says that “everything is fair game.” What the state argues it must show sounds like a “pretty low bar,” Rush said later. It could mean someone who doesn’t agree to unlock her phone could be incarcerated indefinitely, she said.
Compelling decryption of a cellphone is "the digital equivalent of just surrendering a key to a locked cabinet,” argued Ellen Meilaender, Indiana supervising deputy attorney general. The state didn’t ask that Seo, who was charged with stalking and invasion of privacy, share anything about contents of her phone or her mind, or where evidence might be found; it asked her only to admit she was able to unlock the phone, the state attorney said. Protection from government overreach would come not from the Fifth Amendment, but Fourth Amendment requirements on particularity for warrants, replied Meilaender. “To get a search warrant, you have to be able to show with … sufficient specificity what the evidence is you believe will be found.”
Justice Steven David asked what would happen to the Fifth Amendment if the state were successful. Seo’s attorney, William Webster, said, “If all the government has to do is come to the court and state that the person owns the phone … and it’s password-protected,” and therefore that person must know the password and law enforcement may compel her to unlock it, “the Fifth Amendment then gets swallowed up” because it’s a “minimal burden.” Asking someone to decrypt a phone isn’t an insignificant request, Webster said. “The testimonial aspects” of unlocking the phone is “communicating that those files exist, … they’re on my phone and they’re authentic.”
The “obvious concern” with the Seo attorney’s position is that “there is a zone of lawlessness created if you accept the premise that you … can never compel decryption,” said Justice Christopher Goff. What Seo was alleged to do might not have been “the crime of the century, but I can envision situations where there may be a genuine concern with respect to public safety.”
But law enforcement could gain access in other ways without requiring a person to unlock a phone, including for example by going to Apple if it’s an iPhone or the telecom provider, said Electronic Frontier Foundation Senior Staff Attorney Andrew Crocker. “The Fifth Amendment has always put evidence off limits to law enforcement,” he said. “Encryption is just the most recent means of securing that right.”
Justice Geoffrey Slaughter asked if the court could dismiss the case as moot, since criminal cases against Seo have been resolved. Meilaender said it’s not moot because the state could still seek to enforce the search warrant. Slaughter asked, “To what end?” The Indiana attorney said the cause supporting the warrant “hasn’t evaporated.”
Justice Mark Massa noted challenges of applying old decisions to modern times: “We’re dealing with precedents of the Supreme Court of the United States that were decided in a society that relied on paper, and now we’re trying to apply those precedents in this digital, electronic era.”