Because the relevant Supreme Court precedents predate the smartphone era, the courts are divided on how to apply the Fifth Amendment.
Indiana’s Supreme Court has ruled that the Fifth Amendment allows a woman accused of stalking to refuse to unlock her iPhone. The court held that the Fifth Amendment’s rule against self-incrimination protected Katelin Seo from giving the police access to potentially incriminating data on her phone.
The courts are divided on how to apply the Fifth Amendment in this kind of case. Earlier this year, a Philadelphia man was released from jail after four years of being held in contempt in connection with a child-pornography case. A federal appeals court rejected his argument that the Fifth Amendment gave him the right to refuse to unlock hard drives found in his possession. A Vermont federal courtreached the same conclusion in 2009—as did a Colorado federal court in 2012, a Virginia state court in 2014, and the Massachusetts Supreme Judicial Court in 2014.
But other courts in Florida, Wisconsin, and Pennsylvania have reached the opposite conclusion, holding that forcing people to provide computer or smartphone passwords would violate the Fifth Amendment.
Lower courts are divided about this issue because the relevant Supreme Court precedents all predate the smartphone era. To understand the two competing theories, it’s helpful to analogize the situation to a pre-digital technology.
A safe analogy
Suppose that police believe that a suspect has incriminating documents stored in a wall safe and they ask a judge to compel the suspect to open the safe. The constitutionality of this order depends on what the police know.
If the government can’t show that the suspect knows the combination—perhaps the suspect claims the safe actually belongs to a roommate or business partner—then all courts agree that forcing the suspect to try to open it would be unconstitutional. This is because the act of opening the safe functions as an admission that the suspect owns the safe and the documents inside of it. This fact could be incriminating independent of the contents of any documents found inside the safe.
On the other hand, if the government can show that the suspect knows both the password and which specific documents are in the safe—perhaps because the suspect described the safe’s contents during an interrogation—then all courts agree that the suspect can be forced to open the safe. That’s because the Fifth Amendment is a right against self-incriminating testimony, not the production of incriminating documents.
But what if the state can show the suspect knows the combination but doesn’t know which documents are in the safe? Here the courts are split.
One theory holds that only the act of opening the safe is testimonial. Once the safe is open, the safe contains whatever documents it contains. The police get the information in the documents directly from the documents, the same as they would if they’d found them lying on the suspect’s desk. So the contents of the documents are not compelled testimony.
The other theory—the one endorsed by Indiana’s Supreme Court this week—holds that it matters whether the police know which documents they’re looking for. If the police are looking for specific documents that they know are in the safe, then there may be no Fifth Amendment problem. But if the request is more of a fishing expedition, then it’s barred by the Fifth Amendment, since the act of opening the safe gives the police access to information they wouldn’t have otherwise. Some courts have found this argument particularly compelling due to the vast amount of information on modern smartphones.
The Hubbell ruling
A key ruling here is a 2000 Supreme Court opinion in the prosecution of Webster Hubbell, a Bill Clinton associate who got ensnared by the Whitewater investigation. Prosecutors asked Hubbell to produce documents in 11 broad categories. By combing through the documents Hubbell provided, prosecutors were able to find evidence to charge Hubbell with mail fraud and tax evasion. Hubbell argued that the prosecution violated his Fifth Amendment rights, since he’d been compelled to provide the evidence used to prosecute him.
The Supreme Court sided with Hubbell. The key issue was that the prosecutor’s subpoena to Hubbell lacked particularity. It asked for broad categories of documents and relied on Hubbell to figure out which documents met the criteria prosecutors provided.
Hubbell wasn’t just producing specific documents requested by the government. He was using his own knowledge and judgment to provide the government with documents whose existence it might never have discovered without Hubbell’s help. Whenever Hubbell turned over a document the authorities didn’t know about, he was implicitly admitting that it existed. That admission was an act of testimony protected by the Fifth Amendment, the Supreme Court ruled.
Indiana’s Supreme Court argues that the same principle applies when a suspect is compelled to unlock a smartphone. By unlocking her phone, Katelin Seo would be giving prosecutors access to files they didn’t know existed and might not be able to access any other way.
“Even if we assume the State has shown that Seo knows the password to her smartphone, the State has failed to demonstrate that any particular files on the device exist or that she possessed those files,” Indiana’s Supreme Court held. “Detective Inglis simply confirmed that he would be fishing for ‘incriminating evidence’ from the device.”
The Indiana ruling is hard to square with Hubbell
There are good policy reasons to favor the Indiana Supreme Court’s interpretation of the law. Modern smartphones contain a wealth of sensitive personal information that simply didn’t exist in a pre-smartphone era. It’s troubling to give police or prosecutors free rein to rummage through every aspect of a suspect’s personal life looking for evidence of illegal behavior.
At the same time, I don’t think the Indiana Supreme Court’s reading of Hubbell precedent makes much sense. The key to the Hubbellruling was the fact that prosecutors relied on Hubbell’s knowledge and judgment to locate incriminating documents.
“Given the breadth of the description of the 11 categories of documents called for by the subpoena, the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions,” the Supreme Court wrote in its 2000 ruling. By contrast, while the government doesn’t know which specific files are on Seo’s smartphone, the government also isn’t relying on Seo’s knowledge or judgment to decide which files it wants. The smartphone contains whatever files it contains, and the prosecutors want access to all of them.
In other words, the subpoena effectively forced Hubbell to tellprosecutors whether or not certain categories of documents existed. But if a suspect unlocks a smartphone, the suspect is only admitting that she owns the smartphone. She’s not making any statements—implicit or otherwise—about what files exist on the smartphone.
Let’s talk strongboxes
A key sentence from the Hubbell ruling makes this clear. The Supreme Court wrote that Hubbell’s actions were “like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.” The courts have been clear that the government can force a suspect to supply the key to a strongbox even if the government (in the words of the Indiana Supreme Court) “failed to demonstrate that any particular files” exist in the strongbox. That’s because supplying the key doesn’t tell the government what’s in the box—it merely enables the government to look for itself.
Imagine that a suspect admits to police that she wrote down her smartphone’s passcode on a piece of paper and put the paper in a strongbox. A judge wouldn’t violate the Fifth Amendment by ordering the suspect to turn over the key to the strongbox—even though the practical impact is exactly the same as unlocking the phone directly. That’s because entering the passcode merely amounts to an admission that the suspect owns the phone—not to any statements about what files are on the phone.
Of course, as I mentioned previously, a number of courts have reached the opposite conclusion. They’ve read Hubbell as requiring the government to have a specific idea of which files it wants in order to compel decryption.
In any event, this is a case that’s crying out for intervention by the US Supreme Court. This issue will only get more important as people conduct more of their personal lives—and commit more crimes—with the aid of smartphones. Enough courts have staked out contradictory positions that the only way to resolve it is for the US Supreme Court to take one of these cases and provide a definitive ruling.
All Rights Reserved for Timothy B. Lee