IN: Order compelling owner of iPhone to unlock it violates 5A self-incrimination; the state is seeking to extract information from her mind

Defendant claimed she’d been sexually assaulted by her boyfriend. In investigating that, it turned into a stalking and harassment investigation of her. The state got a search warrant for her phone. When she wouldn’t unlock it, they sought a court order to make her unlock it. The court concludes the ordered to unlock her phone violates the Fifth Amendment and the contempt citation is set aside. The state or federal constitutional validity of the search warrant is not yet before the court. Seo v. State, 2018 Ind. App. LEXIS 290 (Aug. 22, 2018):

[35] Many courts that have considered this issue have held that forcing a person to reveal their password is testimonial because, in the words of the Doe II Court, it is “[t]he expression of the contents of an individual’s mind.” 487 U.S. at 210 n.9; see also United States v. Kirschner, 823 F.Supp.2d 665, 669 (E.D. Mich. 2010) (holding that the government could not compel the defendant to reveal his password because this amounted to “testimony” from him which would “requir[e] him to divulge through his mental processes his password.”); Kiok, supra at 76 (“Because a password comes from a defendant’s mind, its revelation is testimonial.”).

[36] Indeed, when addressing Justice Stevens’s dissent in Doe, the majority of the Court noted that compelling the defendant in that case to sign the bank disclosure forms was more akin to “be[ing] forced to surrender a key to a strongbox containing incriminating documents” than it was to “be[ing] compelled to reveal the combination to [petitioner’s] wall safe.” 487 N.E.2d at 210 n.9. Here, under precedent as it now exists, we hold that the State is seeking the electronic equivalent to a combination to a wall safe-the passcode to unlock the iPhone.

[37] Moreover, some courts appear to have rejected the State’s attempt to distinguish between compelling a defendant to reveal the passcode versus merely compelling the defendant to unlock the phone herself and give the State access to the unlocked phone. As summarized by one commentator:

But what about forcing you to enter a password? Is this a compellable physical act? Three courts have answered no. In their view, forcing a person to use a password to decrypt a hard drive is not a physical act because it forces the person to use the contents of his mind. Also prevalent in these courts’ reasoning is the key-combination dicta already discussed: “A password, like a combination, is in the suspect’s mind, and is therefore testimonial ….”

Dan Terzian, The Micro-Hornbook on The Fifth Amendment and Encryption, 104 Geo. L. J. Online 168, 171-72 (2016).

[38] The three cases Terzian refers to are: In re Grand Jury Subpoena Duces TecumDated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012), which held that “the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature.”; In re Boucher, 2007 WL 4246473, at *3 (D. Vt. Nov. 29, 2007), which held that entering a password into a computer implicitly communicates facts and was therefore testimonial in nature; and Commonwealth v. Baust, 89 Va. Cir. 267 (2014), which held that compelling defendant to provide access to his locked phone through his passcode was testimonial. See also Kiok, supra at 76 (“an order to compel decryption [i.e., unlocking a smartphone] compels a testimonial act.”); Andrew T. Winkler, Password Protection and Self-Incrimination: Applying the Fifth Amendment Privilege in The Technological Era, 39 Rutgers Computer & Tech. L.J.194, 209 (2013) (“Entering a password or otherwise decrypting the contents on a computer is a testimonial act that receives the full protection of the Fifth Amendment.”).

[39] Upon consideration of this authority, and because we believe that electronic data and the devices that contain it are fundamentally different than paper documents and paper storage, we reject the State’s attempt to distinguish between compelling Seo to convey her passcode to the State and compelling Seo to simply unlock her phone by entering the passcode itself. It is a distinction without a difference because the end result is the same: the State is compelling Seo to divulge the contents of her mind to obtain incriminating evidence.

[40] Furthermore, we consider Seo’s act of unlocking, and therefore decrypting the contents of her phone, to be testimonial not simply because the passcode is akin to the combination to a wall safe as discussed in Doe. We also consider it testimonial because her act of unlocking, and thereby decrypting, her phone effectively recreates the files sought by the State. As discussed above, when the contents of a phone, or any other storage device, are encrypted, the cyphertext is unintelligible, indistinguishable from random noise. 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. Thus, compelling Seo to unlock her phone goes far beyond the mere production of paper documents at issue in Fisher, Doe, or Hubbell. Because compelling Seo to unlock her phone compels her to literally recreate the information the State is seeking, we consider this re-creation of digital information to be more testimonial in nature than the mere production of paper documents.

See techdirt: Indiana Appeals Court Says Forcing Someone To Unlock Their Phone Violates The 5th Amendment.

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