
Indiana Supreme Court Rules That Police Can’t Force User to Unlock Her Phone - aspenmayer
https://www.eff.org/deeplinks/2020/06/victory-indiana-supreme-court-rules-police-cant-force-smartphone-user-unlock-her
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aspenmayer
> In the case, Seo v. State, the court found that the Fifth Amendment
> privilege against self-incrimination protected a woman against unlocking her
> phone because complying with the order was a form of “testimony” under the
> Fifth Amendment.

The ruling:

[https://law.justia.com/cases/indiana/supreme-
court/2020/18s-...](https://law.justia.com/cases/indiana/supreme-
court/2020/18s-cr-595.html)

Original title was too long. It was:

Indiana Supreme Court Rules that Police Can’t Force Smartphone User to Unlock
Her Phone

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pmdulaney
Do you agree with that ruling? Wouldn't you say that the woman's cellphone was
more akin to her personal papers than her mind itself?

~~~
aspenmayer
I do agree, with the ruling, with the interpretation, and with the usage and
application in this case of the Fifth Amendment protections against self-
incrimination. To explain:

I think personal papers implies that you have access to the data in the same
form that it is used by the hypothetical original user, owner, or the
defendant, in this case. The user of the phone operates it as an extension of
their mind; try using someone else’s phone, and you won’t get the same utility
or data out of it as the user. It is theoretically possible to extract all of
the data and metadata from the phone, but you can’t correlate that with usage
perfectly, and it’s hard to correlate it with user awareness or intent;
contrast unfamiliar phones with questionable or incriminating documents or
other kinds of files. The format implies usage of files. This is not so with
phones or entire computing devices. A specific user’s behavior must be
observed for intent to be accurately deduced. Simple possession of data does
not: imply creation of that data, awareness of the presence of data, intent to
use or pass on that data, and so on. It is reasonable to assume that with
access to the device, its contents would be used contrary to the owner’s
intent, and perhaps contrary to actual matters of fact. If eyewitness
testimony can be fallible, so too can the testimony of a device against its
operator, especially with a prosecutor involved. One could find themselves
forced to deny baseless accusations, the foundation for which is based on the
outcome of a search which ought to have never occurred, and which search
should be inadmissible due to duress of being held in contempt of court being
used to coerce a confession, admission, or testimony against oneself of some
kind.

I also agree with the Fifth Amendment argument. If someone can compel you to
open your phone, the only reason they would reasonably do so is to prosecute
you or hold you in contempt in order to force the user to both acknowledge
that they know the unlock code, and further force the user to defend against
an unreasonable search of that which should be private. If the law can’t get
it, they shouldn’t be able to twist anyone’s arm to help, especially the
defendant. From the point of view of the law, this may seem just, but as a
defendant, you can only give the prosecution data they don’t already have. The
fact that if you are in this situation at all is why the Fifth Amendment
exists to begin with. If your mind or will can be bent to your own
prosecution, or force you to undermine your own defense by affirming knowledge
about a device and it’s unlock code, via threat of imprisonment via contempt
of court, I would see that a potential abuse of Fifth Amendment protections.

I view prosecutors advocating for violating or actually violating the Fifth
Amendment through arguments leading to forced unlocks to be committing legal
malpractice on behalf of the government; judges who accept these legal
arguments are literally performing unconstitutional kinds judicial activism,
as these interpretations of our rights functionally remove our inalienable
rights via legal precedent. This should have never been allowed in the
original case; as this Indiana case is part of appeals of that original case,
the appeals courts have standing to rule that forcing device unlocks is
inconsistent with the Fifth Amendment. This ruling is a step in the right
direction. Now we just need a similar ruling by the highest court in the land,
not just the highest court in Indiana.

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pmdulaney
Thanks for your response.

"A specific user's behavior must be observed for intent to be accurately
deduced." Excellent point.

Overall I think you've convinced me, in the general case, not only that a
person should not be required to unlock his or her own phone, but that law
enforcement (e.g., FBI) should not be permitted to attempt to access the
phone.

A possible exception in my mind would be accessing the phone to get
information generally acknowledged to be objective and straightforward -- such
as location data. But then it perhaps becomes a Fourth Amendment issue. It
seems to me that in the (entirely hypothetical and unlikely) case that such
data were not accessible via warrant from the cell phone provider that a
limited warrant (for position data only) could be enforced, assuming probable
cause were established.

[https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf](https://www.supremecourt.gov/opinions/17pdf/16-402_h315.pdf)

