WABASH, Ind. (CN) – In a
case involving an accused stalker, the Indiana Supreme Court heard oral
arguments Thursday over whether police can force criminal suspects to unlock or
decrypt their cellphones.
The hearing centered on a woman named Katelin Seo, who was
asked to unlock her cellphone for criminal investigators after she was charged
with stalking and harassing a man she had accused of raping her.
Seo’s attorney William Webster argued Thursday morning
before the Indiana Supreme Court that forcing a criminal suspect to turn over
and decrypt their cellphone violates their Fifth Amendment right against
self-incrimination.
The state countered that simply asking Seo to unlock her
phone is not compelling her to reveal anything incriminating per se.
“Defendant is not being compelled to tell the state anything
about the contents of her phone, or the contents of her mind. Nor is she being
required to tell the state where the evidence it seeks may be found,” Deputy
Attorney General Ellen Meilaender said during the hearing. “By unlocking her
phone she’s only compelled to implicitly admit that she has the ability to do
so.”
The five-judge panel vigorously questioned the state’s
position that once a search warrant for a cellphone is obtained, the owner must
unlock it and the contents of the phone are then fair game.
During the proceedings held in downtown Wabash,
Chief Justice Loretta Rush likened the request to unlock a phone without
knowing what was on it to a “fishing expedition.”
Seo was charged in July 2017 with stalking, theft and invasion
of privacy after she contacted the Hamilton County Sherriff’s Department
claiming that she was raped by a man identified in court documents as D.S.
According to court records, Seo initially gave law
enforcement officers her Apple iPhone and allowed them to examine it for
evidence. But after they declined to pursue rape charges against D.S., police began
to investigate Seo for stalking and harassing him.
After her arrest, police confiscated Seo’s phone and
obtained a search warrant for it. However, appearing in court in August 2017
alongside her lawyer, Seo refused to comply with a court order to unlock her
iPhone.
The trial court found her in contempt for not unlocking the phone,
but a divided Indiana Court of Appeals reserved that decision in August 2018.
In a 2-1 ruling, the state appellate judges found that forcing Seo to unlock her cellphone would violate her civil rights.
” The Fifth Amendment privilege against self-incrimination
reflects our nation’s fundamental principles. These principles should not be
altered by the advance of technology,” Judge Paul Mathias wrote in the 43-page majority
opinion.
At Thursday’s Indiana Supreme Court hearing, the justices
questioned the state several times about the relevance of the case, considering
Seo has already pleaded guilty to her criminal charges and the only remaining
issue was a civil contempt order that sought to compel her to unlock her phone.
Arguing on behalf of the state, Meilaender countered that investigators
may be looking for evidence of further crimes. Had investigators been able to
obtain the information on the phone, she said, they may have been able to get
guilty pleas on more than just two criminal counts.
Also arguing on behalf of Seo was Andrew Crocker of the Electronic Frontier Foundation, which filed an amicus brief on her behalf along with the American Civil Liberties Union.
“Decrypting a phone is very much like the act of producing
documents. Here the state has the phone in its possession and seeks the
defendant’s help in understanding what evidence [is on it] and getting access
to it,” Crocker said.
Despite only the issue of the contempt order remaining for
Seo, the panel did not shy away from the implications their ruling may have for
future cases.
“If a citizen is compelled to unlock a cellphone based on a
warrant, what’s left of the Fifth Amendment?” Justice Rush asked.
Following that line of questioning, Seo’s attorney Webster
argued the state had additional pathways to achieve its goals without forcing
his client to offer up her passcode to unlock the phone.
“If it’s only the password, then give us the phone back.
Give us the phone back and we’ll give the password. Issue a subpoena and we’ll
give you the documents you’re looking for,” Webster said.
The state doubled down on its position, claiming Seo was
only asked by court order to unlock her phone and that the files on it could be
treated similarly to objects found in a home during a search backed by a
warrant.
Justices Steven David, Mark Massa, Geoffrey Slaughter and
Christopher Goff joined Rush on the panel.
It is unclear when they will issue a decision in the case.