INDIANAPOLIS (WTHR) — The passcode to your cell phone may not be as private as you think. The Indiana Supreme Court will soon decide whether police can legally compel you to reveal that passcode, even if you don’t want to.
Next month, Indiana’s five Supreme Court justices will hear oral arguments in Seo v. State of Indiana. The case involves clashing interests: the privacy and constitutional rights of individuals whose cell phones hold a treasure trove of personal information versus the needs of police and communities to solve crimes and hold criminals responsible.
“There will be a lot of eyes on the case because it raises some questions that courts really haven’t grappled with,” said Stephen Creason, a deputy attorney general who will argue the case before the Indiana Supreme Court on behalf of the state and its law enforcement agencies.
The case has garnered national attention because the outcome could have far-reaching implications for millions of people who use cell phones.
Provide password or go to jail
The now closely watched case was on few radar screens when it first appeared in Hamilton County Superior Court in the summer of 2017. That’s when the court issued a search warrant ordering Katelin Seo to hand over her iPhone 7 Plus to the Hamilton County Sheriff’s Department. That warrant allowed investigators to search the phone without limitation. At the time, deputies were investigating Seo for alleged stalking, intimidation and harassment. She gave investigators her phone, but she refused to reveal the passcode, citing her right against self-incrimination under the Fifth Amendment to the United States Constitution.
Frustrated that sheriff’s deputies were unable to access information within the phone, prosecutors argued that Seo had not complied with the search warrant because her refusal to unlock her iPhone rendered the warrant useless. A superior court judge agreed, finding her in contempt of court and ordering the defendant go to jail.
Instead, she appealed her case to the Indiana Court of Appeals. Two of the three appellate judges sided with Seo, reversing the trial court’s contempt order and sending the case back to Hamilton County.
In its majority opinion, the Court of Appeals soundly rejected the trial court’s arguments, concluding “compelling Seo to unlock her iPhone, under the threat of contempt and imprisonment, is constitutionally prohibited by the Fifth Amendment.” The appellate judges also commented on the significant issues raised by the case.
“The amount of personal information contained on a typical smartphone is astounding,” the judges wrote. “A smartphone is a trove of extremely personal information that is almost always embarrassing, and potentially, incriminating… [it] is 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. 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.”
The appeal was transferred to the Indiana Supreme Court in December when the court announced it would accept the case on its spring docket, essentially vacating the opinion of the appellate court.
“You don’t get to hide evidence”
The Indiana Attorney General’s office said the Court of Appeals got it wrong, and it is looking forward to explaining its rationale when the state’s Supreme Court hears oral arguments in April.
“You don’t get to hide evidence just because you don’t want police to see,” Creason explained during a one-on-one interview with 13 Investigates inside the attorney general’s law library. He said another ruling against police in this case could have a devastating impact on law enforcement’s ability to investigate crimes.
“There is no question here that the court’s order [to reveal the phone’s passcode] is valid and lawful. The system would completely break down if a court order could be flaunted merely because you chose to enter a passcode on something to lock it down or encrypt it,” Creason said, pointing out that investigations into cases of child pornography, financial crimes and intimidation could be significantly impeded by allowing suspected criminals to simply lock evidence in their phones. “Sometimes our privacy rights give way to the police’s need to solve crimes and to hold criminals responsible.”
Asked if Indiana residents should be concerned about police getting unrestricted access to their phones, the deputy attorney general attempted to provide reassurance.
“People don’t need to be worried about police being able to illegally or improperly reach into their phones,” he said. “A warrant is still required to access that information, so they’ll always have a judge as a barrier to protect people’s rights. Courts are the safeguard that all of us have for overreach by the government.”
Seo’s attorney disagrees. William Webster said his client’s case proves that courts do not always prevent overreach by government. By way of example, he explained that police who request a search warrant for a home are first required to tell a judge what they are looking for. But in this case, he said a Hamilton County judge gave sheriff’s deputies permission to search his client’s cell phone even though they never explained what evidence they were trying to find.
“You can’t just arrest someone and say, ‘Hey, that’s your cell phone. You must know the password. Give us your cell phone and, by the way, we want to look at pictures on your phone, your kid’s pictures, communications with your spouse. We want to look at emails, Facebook, we want to look at what you’re doing on your LinkedIn page. If you have cloud storage, we want to look at that.’ There wasn’t anything identified. They just wanted to do a forensic download of the entire contents of the phone. They wanted to look at everything to try to find evidence. I think that’s concerning.”
Court says police went too far
In its split ruling, a 3-judge panel of the Indiana Court of Appeals agreed with Webster, citing three reasons for what it considered overreach by the court and law enforcement in Hamilton County.
First, the appellate judges said requiring people to reveal their phone passcode is a “testimonial act” that is equivalent to compelling them to share incriminating information about themselves – something that is prohibited by the Fifth Amendment of the U.S. Constitution.
Second, the appeals court decided the State had not met the requirements of the “foregone conclusion doctrine,” which holds that the act of revealing a passcode is not protected testimony if the government can show the evidence it wants exists, is in the possession of the defendant and is authentic. In his opinion, presiding Judge Paul Mathias stated the warrant demanding that Seo reveal her passcode lacked specificity describing the “discrete contents” of the phone that the sheriff’s department wanted to access.
And finally, the court said the State should attempt to “first seek the evidence it feels it needs to prosecute the crime(s) alleged from third-party sources” rather than immediately compel Seo to divulge her passcode.
Appellate Judge Melissa May wrote a dissent, arguing that information on Seo’s phone sought by investigators is not protected by the Fifth Amendment because it already exists and requires no new “testimony” by the defendant. May wrote “the law ought to treat files on a cell phone – encrypted or not – like prior-produced documents sitting in a file cabinet, which do not enjoy Fifth Amendment protection.” She further argued that allowing defendants to hide incriminating evidence via encryption creates a “zone of lawlessness” that law enforcement would be unable to police to maintain the safety of all citizens.
Courts in other states have wrestled with the same issues, often coming to different conclusions.
No clear precedent
Late last year, Florida’s Fourth District Court of Appeals ruled a teenager involved in a deadly car crash did not have to reveal his iPhone passcode to police investigating the case because doing so would violate his Fifth Amendment rights. The ruling conflicts with a 2016 opinion in the same state that allowed police to compel a man accused of voyeurism to disclose the passcode to his cell phone.
Last year, a U.S. District Court judge in California upheld an FBI request to require the defendant in a child pornography case to reveal the passcodes to his cell phone and computer hard drive. That comes after a federal judge in Pennsylvania ruled that requiring someone to provide their passcode to police was not legally acceptable. And more recently, Forbes magazine reported on the first known case in which federal investigators, equipped with a search warrant, required a defendant in Ohio to put his face in front of his iPhone to unlock the device using Apple’s facial recognition technology. Other cases involve mandating defendants to unlock their cell phones with fingerprint technology, which courts have generally found to be acceptable. But just last month, a magistrate in California ruled that police cannot force defendants to unlock their cell phones using their fingerprint, face or any other biometric features.
Should the emergence of new technologies – and which type of encryption technology is found on your device – impact whether police have a right to search your phone?
“We need those questions answered. Both the public needs them answered, but also law enforcement needs to know what the limits are with regards to new technology and longstanding legal issues,” Creason said. “The government has to have the ability to enforce its orders.”
“These are important questions because we’re talking about the intimate details of somebody’s life, everything that’s on your phone. It’s almost an extension of you,” Webster said. “If this case gets reversed [by the Indiana Supreme Court], what you put on your phone is going to be more easily accessed by the government.”
While Seo’s attorney and the attorney general’s office have differing view’s of the appellate court decision, there is one aspect of the case on which they both agree: the potential impact of a decision by the Indiana Supreme Court will be huge.
“Anybody who’s got a cell phone will be affected by this,” Webster said.
“It’s very possible it might influence how other courts in other states and the U.S. Supreme Court decide these questions eventually,” Creason added.
Other states watching Indiana closely
Because of the case’s potential widespread impact, eight states have filed an amicus briefs with the Indiana Supreme Court, citing “a strong interest in aiding this Court’s decision.”
The attorneys general from Utah, Georgia, Idaho, Louisiana, Montana, Nebraska, Oklahoma and Pennsylvania told the Indiana Supreme Court they find the lead opinion of Indiana’s appellate court to be deeply flawed. They believe that opinion “drastically alters the balance of power between investigators and criminals and renders law enforcement often incapable of lawfully accessing relevant evidence.”
The American Civil Liberties Union also filed an amicus brief with the Indiana Supreme Court, asking justices to reverse the trial court’s contempt order because forcing Seo to reveal her passcode “leaves individuals at the mercy of advancing technology.” The ACLU sided with the lead opinion of the appellate court by arguing the state failed to demonstrate with reasonable particularity that the defendant’s phone contained specific information that it already knew to be present.
Regardless of how the Indiana Supreme Court rules on the case, attorneys representing both sides anticipate it could eventually be headed to the U.S. Supreme Court.
Your legal rights
In the meantime, if police request your cell phone and passcode, you have several options:
- If you want to cooperate with the request, you can voluntarily choose to comply by granting access to your phone and its contents.
- If you do not want to comply with the request, police cannot legally search your phone without your permission unless they have a search warrant issued by a court. Police are permitted to confiscate your phone at the scene of an accident or suspected crime, and then must log it and store it as evidence for safe keeping. But for investigators to actually look at the contents of your phone, that requires a valid search warrant.
“Even if your phone is unlocked and has no passcode at all, police still need a search warrant to look at it without your permission,” Creason said. “Just because they have it doesn’t mean they can look at it for evidence.”
Whether you are then legally required to reveal your passcode to police is the issue that the Indiana Supreme Court will consider next month. An opinion from the court is expected by the end of the year.