5th Amendment smartphone privacy case goes before Supreme Court

It began in July 2017, when Katelin Seo was arrested on stalking-related charges and ordered to unlock her cellphone as part of the criminal investigation. Seo refused, invoking her Fifth Amendment right against self-incrimination, and a flurry of constitutional and technology-related questions ensued.

Can a citizen invoke the Fifth Amendment to protect what’s on their phone? How does the Fifth Amendment apply to technology? Does a Fifth Amendment analysis of technology differ from a similar analysis of paper documents?

Indiana’s appellate courts have been grappling with these questions for nearly a year, beginning with Indiana Court of Appeals arguments last May. Now, the Indiana Supreme Court must make the final decision for Hoosiers on the right way for courts to view the Fifth Amendment in light of evolving technology.

The justices heard arguments Thursday in Katelin Enjoo Seo v. State of Indiana, 18S-CR-00595, grappling with the question of how to apply paper-based Fifth Amendment precedent to a technological case such as this. The Court of Appeals ruled in Seo’s favor, finding that the act of unlocking the phone would be testimonial “because the passcode is akin to the combination to a wall safe as discussed in (Doe v. United States, 487 U.S. 201 (1988).”

Judge Paul Mathias penned the 43-page majority opinion reversing Seo’s contempt conviction in Hamilton Superior Court, while Judge Patricia Riley concurred in result and Judge Melissa May dissented, meaning the court did not obtain a true majority.

In presenting arguments to the Supreme Court on Thursday, attorney William Webster, arguing on behalf of Seo, likewise likened the act of unlocking a phone to providing law enforcement with the combination to a safe. Doe drew a distinction between providing a passcode to a safe and the key to a lockbox – the former could be protected under the Fifth Amendment, the U.S. Supreme Court opined, while the latter could not.

Similarly here, Webster said compelling Seo to unlock her phone would force her to make three factual assertions that collectively lead to Fifth Amendment protection: that any evidence on the phone exists, that the evidence was under her control, and that the evidence is authentic. Conversely, providing the key to a lockbox, as described in Doe, would not force a defendant to make any factual assertions.

But Ellen Meilaender, a deputy attorney general arguing on behalf of the state, presented the opposite argument. The only implicit assertion Seo would make in unlocking her phone is that she knows the passcode, Meilaender said, nothing more. She would not be asked to discuss the contents of the phone or where potential evidence might be found.

“It adds nothing to the sum total of the state’s information,” Meilaender told the court.

A key issue for Mathias in writing for the Court of Appeals is the fact that the contents of Seo’s iPhone 7 are encrypted each time the phone is locked. Thus, unlocking the phone requires the device to decrypt its contents, an act Mathias likened to “recreating” the documents and said would enjoy Fifth Amendment protection.

Justice Steven David tried to put the decryption process in terms of paper records, asking Meilaender whether the Fifth Amendment would apply if documents being sought were in French and had to be translated into English. Meilaender distinguished the two processes, saying translating the documents into a new language might enjoy Fifth Amendment protection because the act of translation would carry implicit testimonial assertions — specifically, that the defendant understands both languages, is capable of translating and is authenticating the translation.

Phone decryption, however, requires no effort on the part of the defendant other than the few steps it takes to unlock the phone, Meilaender said. And because, according to the state, unlocking a phone is not a testimonial act, decryption does not implicate the Fifth Amendment.

But Webster maintained that unlocking the phone is testimonial, a point Justice Mark Massa questioned him on. In response, the attorney said the state had not identified what information it was seeking on Seo’s phone, so unlocking it would give the state access to all of her information while forcing her to acknowledge that the information exists. The latter point — the acknowledgment — is the key to the testimonial nature of the act, Webster said.

But that argument waded into a related area of the case that the appellate courts have sought to avoid: the Fourth Amendment.

The justices repeatedly noted that the scope of the information the state was seeking on Seo’s phone is not at issue here, as the case is currently being litigated under the Fifth Amendment, not the Fourth. But the Fourth Amendment issue subtly underscored much of the arguments as the parties discussed what content might be available to law enforcement if they are allowed to unlock the phone.

Another key issue in the case is the foregone conclusion doctrine. According to the state, it’s a foregone conclusion that Seo knows her passcode and that there are texts between Seo and the stalking victim on the phone. Thus, the foregone conclusion exception to the self-incrimination protection should apply here, Meilaender said.

Webster, however, said the foregone conclusion has never applied to testimony or factual assertions made by a defendant. Thus, because he argues unlocking the phone would be testimonial and would require Seo to make certain factual assertions, the foregone conclusion doctrine cannot apply.

Another point raised during the argument was the fact that Seo has resolved all of the criminal charges against her by pleading guilty. The court asked Meilaender why that fact would not make the case moot, but she said there’s a chance the state could bring more charges against Seo if she is compelled to unlock her phone and additional evidence is found.

The high court heard Thursday’s arguments in front of roughly 900 students at the Honeywell Center’s Ford Theater in Wabash. Many of the students were from Justice Christopher Goff’s alma mater — Goff lives in Wabash and came to the Supreme Court from Wabash Superior Court.

Prior to beginning the arguments, the justices introduced themselves and discussed their backgrounds, with Goff speaking about life in Wabash County. After the arguments were over, the justices took questions from the audience.

The full oral argument — which was extended to 50 minutes — can be viewed here.