Highest Court In Indiana Set To Decide If You Can Be Forced To Unlock Your Phone

The Electronic Frontier Foundation argues that police should not be allowed to force you to turn over your passcode or unlock your device. 'The Fifth Amendment states that no one can be forced to be 'a witness against himself,' and we argue that the constitutional protection applies to forced decryption,' writes the EFF. Last week, the non-profit digital rights group filed a brief making that case to the Indiana Supreme Court, which is set to decide if you can be forced to unlock your phone. From the report: The case began when Katelin Eunjoo Seo reported to law enforcement outside of Indianapolis that she had been the victim of a rape and allowed a detective to examine her iPhone for evidence. But the state never filed charges against Seo's alleged rapist, identified by the court as 'D.S.' (Courts often refer to minors using their initials.) Instead, the detective suspected that Seo was harassing D.S. with spoofed calls and texts, and she was ultimately arrested and charged with felony stalking. Along with a search warrant, the state sought a court order to force Seo to unlock her phone. Seo refused, invoking her Fifth Amendment rights. The trial court held her in contempt, but an intermediate appeals court reversed. When the Indiana Supreme Court agreed to get involved, it took the somewhat rare step of inviting amicus briefs. EFF got involved because, as we say in our brief filed along with the ACLU and the ACLU of Indiana, the issue in Seo is 'no technicality; it is a fundamental protection of human dignity, agency, and integrity that the Framers enshrined in the Fifth Amendment.'

Our argument to the Indiana Supreme Court is that compelling Seo to enter her memorized passcode would be inherently testimonial because it reveals the contents of her mind. Obviously, if she were forced to verbally tell a prosecutor her password, it would be a testimonial communication. By extension, the act of forced unlocking is also testimonial. First, it would require a modern form of written testimony, the entry of the passcode itself. Second, it would rely on Seo's mental knowledge of the passcode and require her to implicitly acknowledge other information such as the fact that it was under her possession and control. The lower appellate court in Seo added an intriguing third reason: 'In a very real sense, the files do not exist on the phone in any meaningful way until the passcode is entered and the files sought are decrypted.... Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this recreation of digital information to be more testimonial in nature than the mere production of paper documents.' Because entering a passcode is testimonial, that should be the end of it, and no one should be ordered to decrypt their device, at least absent a grant of immunity that satisfies the Fifth Amendment. The case gets complicated when you factor in a case from 1976 called Fisher v. United States, where the Supreme Court recognized an exception to the Fifth Amendment privilege for testimonial acts of production. 'State and federal prosecutors have invoked it in nearly every forced decryption case to date,' writes the EFF. 'In Seo, the State argued that all that compelling the defendant to unlock her phone would reveal is that she knows her own passcode, which would be a foregone conclusion once it 'has proven that the phone belongs to her.'' 'As we argue in our amicus brief, this would be a dangerous rule for the Indiana Supreme Court to adopt. If all the government has to do to get you to unlock your phone is to show you know the password, it would have immense leverage to do so in any case where it encounters encryption.'

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