Indiana Justices Take Up Forced Unlocking of Phones

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.

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