Indiana Supreme Court Creates a Clear Split on Compelled Decryption and the Fifth Amendment

Next stop, the U.S. Supreme Court?

|The Volokh Conspiracy |

The Indiana Supreme Court has handed down a decision in a compelled decryption case, Seo v. State, that creates a clear split in the lower courts on how the Fifth Amendment privilege against self-incrimination applies to compelled unlocking of a phone.  The split means that there's a chance the U.S. Supreme Court might review the decision, and they're likely to take a case on this issue soon even if they don't take this particular one.

This post summarizes the legal issue, explains the new decision, and then considers the chances the U.S. Supreme Court might agree to take the case if the losing party seeks further review.  (It's a long post, but I promise a fascinating federal courts problem at the end. No, really!)

I. Two Approaches to the Law of Compelled Unlocking

Imagine investigators have a search warrant to search a locked electronic device like a cell phone. They can't unlock it, however, because they don't know the password.  The government obtains an order directing a person known to use the phone to enter in the password (without disclosing the password to the government) and to hand over the unlocked device.  But the person refuses to comply, asserting his Fifth Amendment privilege against self-incrimination.

How should a court rule?

Under the relevant Supreme Court precedents, courts have to consider two questions.  First, what is the testimonial aspect of the compelled act?  In other words, what does the order try to compel the person to implicitly speak?  And second, does the government already know that implied speech, or is it using the compelled act to learn it?

If the government already knows the implicit speech, the Fifth Amendment is no barrier under what is called the "foregone conclusion" doctrine.  If the government is trying to compel the act to learn the implicit speech, however, the privilege applies and blocks the order.

Courts have struggled to answer how these principles apply to a compelled order to enter in a password to unlock a phone or other electronic device.  Two basic views have emerged.

The first view is that the only implicit testimony is "I know the password." If you are ordered to enter in a password, and you enter in the password that unlocks the phone, the only implied statement you have made is that you knew the password and therefore could enter it.  Under this view, the government can compel an act of entering in the password, defeating the Fifth Amendment objection, when the government already knows that the person knows the password.

I have argued for this first view in a 2019 article, Compelled Decryption and the Privilege Against Self-Incrimination. This view has been adopted by a few courts, most importantly the Massachusetts Supreme Judicial Court in Commonwealth v. Jones (2019).

The second view is that unlocking the phone implies more testimony than just "I know the password."  Unlocking the phone is a gateway to a treasure of potential evidence.  The ability to unlock the phone implies control of the phone, and control of the phone implies control of its contents.  Under this view, the government needs more evidence to compel an act of entering in the password than merely that the person knows the password. Exactly what else the government needs to know can vary, but it might include what incriminating contents are on the phone or what the person knows about those incriminating contents.

This second view has been argued for by scholarship including Laurent Sacharoff's article responding to me, What Am I Really Saying When I Open My Smartphone? A Response to Orin S. Kerr.  This view also has been adopted by a few courts, although the most important decision, the 11th Circuit's 2011 ruling in In re Subpoena Duces Tecum, is notably unclear about its precise reasoning.

Despite all the lower court uncertainty on how the law applies to this important fact pattern, the missing link has been a clear split among courts recognized by the U.S. Supreme Court's Rule 10.  Rule 10 is the rule on considerations about what cases to take.  Under that rule, the Supreme Court reviewing cert petitions mostly looks for splits within the set of federal circuit courts and state supreme courts.  We haven't yet had a clear split for Rule 10 purposes, however, because the 11th Circuit's ruling was too murky.

That is, until today.  As of this morning, we have our split thanks to the Supreme Court of Indiana's ruling in Seo v. State.

II.  The Facts and New Ruling in Seo v. State

Katelin Seo was arrested for harassing and stalking a man we know only as "D.S." Searching Seo upon her arrest revealed her locked iPhone 7 Plus.  The government obtained a search warrant to search the phone and a second warrant ordering Seo to unlock the phone to help the government execute the first warrant.  Seo asserted her Fifth Amendment privilege.

The Indiana Supreme Court sustained the assertion of privilege.  In its view, the government could not force Seo to unlock her phone.

The court adopted the second view described above.  According to the court, being forced to unlock a phone reveals a breadth of factual information beyond that a person knows the password:

[T]he act of production doctrine links the physical act to the documents ultimately produced. See Laurent Sacharoff, What Am I Really Saying When I Open My Smartphone? A Response to Orin S. Kerr, 97 Tex. L. Rev. Online 63, 68 (2019). And the foregone conclusion exception relies on this link by asking whether the government can show it already knows the documents exist, are in the suspect's possession, and are authentic. Id. True, the documents' contents are not protected by the Fifth Amendment because the government did not compel their creation. See Doe I, 465 U.S. at 611–12; Fisher, 425 U.S. at 409–10. But the specific documents "ultimately produced" implicitly communicate factual assertions solely through their production. See Hubbell, 530 U.S. at 36 & n.19, 45.

When extending these observations to the act of producing an unlocked smartphone, we draw two analogies. First, entering the password to unlock the device is analogous to the physical act of handing over documents. Sacharoff, supra, at 68. And second, the files on the smartphone are analogous to the documents ultimately produced. Id.

Thus, a suspect surrendering an unlocked smartphone implicitly communicates, at a minimum, three things: (1) the suspect knows the password; (2) the files on the device exist; and (3) the suspect possessed those files. And, unless the State can show it already knows this information, the communicative aspects of the production fall within the Fifth Amendment's protection. Otherwise, the suspect's compelled act will communicate to the State information it did not previously know— precisely what the privilege against self-incrimination is designed to prevent. See Couch v. United States, 409 U.S. 322, 328 (1973).

This leads us to the following inquiry: has the State shown that (1) Seo knows the password for her iPhone; (2) the files on the device exist; and (3) she possessed those files?

The state failed to meet that burden.  True, the government had a search warrant based on probable cause to search the phone. That satisfied the Fourth Amendment.  But the court suggests that the wish to search the phone also makes it problematic from a Fifth Amendment perspective.  The government was using the search warrant to "scour the device" for evidence, and that evidence was incriminating.

Thus, the Fifth Amendment blocked the compelled unlocking:

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. Detective Inglis simply confirmed that he would be fishing for "incriminating evidence" from the device. He believed Seo—to carry out the alleged crimes—was using an application or internet program to disguise her phone number.

Yet, the detective's own testimony confirms that he didn't know which applications or files he was searching for:

"There are numerous, and there's probably some that I'm not even aware of, numerous entities out there like Google Voice and Pinger and Text Now and Text Me, and I don't know, I don't have an all-encompassing list of them, however if I had the phone I could see which ones she had accessed through Google."

In sum, law enforcement sought to compel Seo to unlock her iPhone so that it could then scour the device for incriminating information. And Seo's act of producing her unlocked smartphone would provide the State with information that it does not already know. But, as we've explained above, the Fifth Amendment's privilege against compulsory self-incrimination prohibits such a result. Indeed, to hold otherwise would sound "the death knell for a constitutional protection against compelled self-incrimination in the digital age." Commonwealth v. Jones, 117 N.E.3d 702, 724 (Mass. 2019) (Lenk, J., concurring); see also Davis, 220 A.3d at 549 ("[T]o apply the foregone conclusion rationale in these circumstances would allow the exception to swallow the constitutional privilege.").

The court next offered three reasons why "extending" the foregone conclusion doctrine to smartphones was "concerning."  First, phones store a tremendous amount of information:

Recall that, in Hubbell, the Government had not shown that it had any prior knowledge of either the existence or location of 13,120 pages of documents. 530 U.S. at 45. Though not an insignificant amount of information, it pales in comparison to what can be stored on today's smartphones. Indeed, the cheapest model of last year's top-selling smartphone, with a capacity of 64 gigabytes of data, can hold over 4,000,000 pages of documents—more than 300 times the number of pages produced in Hubbell. 5 It is no exaggeration to describe a smartphone's passcode as "the proverbial 'key to a man's kingdom.'" United States v. Djibo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015).

Second, allowing the government to compel unlocking the phone would raise additional complicated questions once the search was underway that were avoided by not allowing the search at all:

For example, if officers searching a suspect's smartphone encounter an application or website protected by another password, will they need a separate motion to compel the suspect to unlock that application or website? And would the foregone conclusion exception apply to that act of production as well? Suppose law enforcement opens an application or website and the password populates automatically. Can officers legally access that information? Or what if a suspect has a cloud-storage service—like iCloud or Dropbox—installed on the device, which could contain hundreds of thousands of files. Can law enforcement look at those documents, even though this windfall would be equivalent to identifying the location of a locked storage facility that officers did not already know existed? Such complexity is neither necessary nor surprising: the foregone conclusion exception is, in this context, a low-tech peg in a cutting-edge hole.

Third, it was unwise to take a broad view of the foregone conclusion doctrine in light of its uncertain basis,  its uncertain future at the U.S. Supreme Court, and the effect of technological change:

Not only was the exception crafted for a vastly different context, but extending it further would mean expanding a decades-old and narrowly defined legal exception to dynamically developing technology that was in its infancy just a decade ago. And it would also result in narrowing a constitutional right.

Two Justices dissented, mostly (but not entirely) on mootness grounds.  Here's the potential problem.  Seo had refused to unlock the phone, had been held in contempt, appealed, and then, while the case was on appeal, reached a deal with the government and pled guilty to the crime.  Wait, the dissenters argued, isn't the case now moot?  Seo was held in civil contempt, but there is no longer a case left on which the civil contempt can relate.  The court shouldn't reach the constitutional question.  (I'll say more on this below.)

One of the two dissents, by Justice Massa, did express a view on the underlying Fifth Amendment question:

[T]his Fifth Amendment question is the closest of close calls. Courts around the country split, falling into two camps. See generally Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 Tex. L. Rev. 767 (2019); Laurent Sacharoff, What Am I Really Saying When I Open My Smartphone? A Response to Orin S. Kerr, 97 Tex. L. Rev. Online 63 (2019). Reasonable minds can disagree; indeed, many have. Our Court's decision on the merits today is thus not unreasonable, though I would come out the other way for the reasons further explained by Professor Kerr.

 

III.  Will the U.S. Supreme Court Take the Case?

So the battle is joined.  If the state seeks further review, will the U.S. Supreme Court take the case?

On one hand, we now have a clear split.  The Massachusetts Supreme Judicial Court and the Indiana Supreme Court clearly and completely disagree on how the law applies.  Even putting aside the 11th Circuit's opinion, given its murkiness, we now have a very stark split. The courts disagree in a way that will be outcome determinative in many cases.

Further, this is a very important question in modern criminal investigations.  Indeed, 22 states recently joined an amicus brief asking the U.S. Supreme Court to intervene and settle this area.  It seems very likely that the U.S. Supreme Court will review this eventually, and the fact that we now have a clear split makes reviewing Seo a definite possibility if the state seeks review.

On the other hand, there are two issues that give me some pause.

First, is the split deep enough?  The Justices like for the issues they get to "percolate," giving lower courts a chance to take several cracks at them to really explore the different ways the law might apply before the U.S. Supreme Court steps in.  It's a way to lessen the chances of error when cases reach Washington, DC. Lower courts explore all the options so the Justices are less likely to miss something important.

Would the Justices want this issue to percolate?  On one hand, they can.  The same legal issue is pending before the New Jersey Supreme Court in the Andrews case (argued January 21st, 2020) and the Supreme Court of Oregon in the Pittman case (scheduled to be argued September 15th, 2020).  We don't know when those cases would come down, and especially in the COVID era cases can take a while. The Indiana Supreme Court took over a year after the oral argument to decide Seo. But other cases are coming down the pike.

On the other hand, it's not clear to me what further percolation would add.  This issue has been bouncing around for years.  The decisions have explored the issue well, and the two camps of thought on it have pretty firmly emerged.  There's a lot of legal scholarship on it *cough*.  And let's face it, it's a really cool legal issue, too.  So maybe they'll want to step in sooner rather than later.

A second issue is what to make of the mootness problem.  I'm not sure, but it might get in the way of the Supreme Court's review.

Here's the scoop. Although the majority ruled that the case was not moot, it applied Indiana's state mootness doctrine.  State courts are not bound by the Article III limits on the power of federal courts.  And it turns out that Indiana's state mootness doctrine is less strict than federal Article III mootness doctrine.

This creates a really interesting dynamic. Although the case is not moot under state law's standard, the dissenting Justices argue that would be moot under the federal Article III standard.  If that's right, it means that the state court used a power that federal courts don't have to decide the case. As Justice Massa notes, the court "use[d] a federally moot case to decide an important question of federal constitutional law."

That raises a fun law nerd question I am not quite sure how to answer: Can the U.S. Supreme Court even agree to hear this case?  If a state case is moot under a federal Article III mootness standard, but the state court decides a federal issue under the more relaxed state law mootness standard, can the U.S. Supreme Court review the state court's resolution of the federal question?

Justice Massa argues in his dissent that the U.S. Supreme Court can't now step in, and that the inability for the Supreme Court to review the federal issue [EDIT: Oops, I misread this the first time. My apologies for the misread.  Justice Massa actually argues that the the State can seek review, but that the defense would be unable to seek review if the defense had won, which] means that the state court is wrong to reach the merits:

As Justice Jackson so famously proclaimed about the U.S. Supreme Court, "[w]e are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring) (emphasis added). "What, indeed, might then have been only prophecy"—that our Court now firmly establishes that it will reject that finality by deciding cases that can bypass the revising authority of the U.S. Supreme Court on important questions of federal constitutional law—"has now become fact." Martin, 14 U.S. (1 Wheat.) at 348. By deciding this case, the Court's message is crystal clear: it will anoint itself, at times, as the final adjudicator of federal law. To this, I cannot assent.,

I don't have a view of if this is right.  Maybe it just adds an interesting issue for Seo's Brief in Opposition (or even an added Question Presented, if the Court grants).  But it might give the U.S. Supreme Court pause.

This post is long enough, but here's one last thought about the Supreme Court's possible thinking in taking cases in this area.

In addition to the compelled-pass-word-entry cases like Seo and Jones, there are also compelled-password-disclosure cases working their way up to the Supreme Court. Indeed, one of those cases is already before the Supreme Court, Pennsylvania v. Davis.  In the first kind of case, the government says, "go into a room, enter the password, and give us the phone, without telling us the password." In the second kind of case, the government says, "tell us the password."

Under current Fifth Amendment law, as I see it, the two kinds of cases raise different issues. The "foregone conclusion" analysis applies to compelled entry cases, as they involve acts with implied testimony.  But that doctrine shouldn't apply to compelled disclosure cases, as they involve direct testimony. So although the facts are similar, I think the legal framework is different under existing doctrine.

The fact of these two lines of cases working their way up to the Supreme Court raises the question of whether the Court should take on the two issues together.  So far we have a split on the compelled entry issue but no split on the compelled disclosure issue. But there's a ton of confusion about the two issues and how they relate to each other. And although I think they merit different treatment based on current doctrine, it's unclear if the Court would stick with that doctrine when it reviews a compelled decryption case.

Where that leads me, at least, is to think that there's a lot to be said for the Court deciding a compelled entry case and a compelled disclosure case together.  The government usually gets orders for compelled entry because they think the Fifth Amendment standard for compelled entry is easier to meet than that for compelled disclosure.  If the Court only took on a compelled entry case, where there is a clear split, you can bet that the Justices would spend a lot of time pondering how the law also applies to compelled disclosure.  Given that, I think it would make probably make sense for the Court to take on both aspects of problem at once.

As always, stay tuned.

NEXT: The New Censors

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  1. The government searches my home to execute a warrant to obtain documents related to an ongoing investigation, and the warrant allows seizing all documents in my home. The documents are written in a foreign language. If it’s a language only I speak, and nobody else can translate, am I able to be compelled to translate all the documents?

    That’s much more the question than producing physical items or assisting entry. The government has all the data on the phone, they’re asking for help interpreting that data in a way they can understand, with information that exists only in my mind.

    Your position would seem to be yes. Can that be applied further, to abstract meaning? If the government can demonstrate I know the meaning of an artistic symbol, or the particular arrangement of something, found in my home during a home search warrant, can I be compelled to explain it to them? There’s really not much difference to ‘We know you possess fact x in your head, therefore you must disclose it’.

    There’s just no getting around the problem that this is all the kind of testimonial against self the 5th Amendment was meant to prohibit.

  2. fafalone, I discuss your analogy in my 2019 article, and I explain why your analogy doesn’t work. And note also that it’s not at all clear how courts would answer your hypothetical on which your analogy is built. More in the article itself.

    1. Al Capone’s bookie and accountant, say, use code symbols. Cracking that is key to such prosecutions, at least TV says so. Can they throw them in jail until they give the code?

      Also, what’s with the apparent desire to help create a panopticon? The founding fathers would have loved hard encryption, the king would have outlawed it, and so it would be protected.

      Now you can argue, ok, add an amendment. But why do the heavy lifting here on behalf of the panopticon? The larger evil has always been not day to day crime, but government abuse against political enemies and uppity citizens.

      Evidence: Billions around the world right now living the dream…of a boot stepping on their face, forever…as their governments outlaw unbreakable encryption for the exact reason of eternal dominance of their power.

      1. Krayt,

        I would turn the question around: Why should your personal fears of a panopticon lead me to misinterpret the Fifth Amendment? The Fifth Amendment is a part of the Constitution that I think has a meaning. You can disagree with my sense of its meaning, but your expression of your personal fears of politics right now doesn’t move me very far.

        As for what the Framers thought, this might be of interest:
        https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3533069

        1. Strong encryption is readily available and even if the government could outlaw it, it would still be available.

          In searching physical papers could the government compel decryption of encrypted papers found in a person’s residence?

          1. 1) I agree there will always be strong encryption, at least assuming no major advances in quantum computing. But the legal issue is only important if there is strong encryption.

            2) There are no cases on it.

            1. Quantum computing giveth as it taketh. There are many schemes for full quantum encryption that not only encrypt but can detect attempts to decrypt.
              In addition, there is a large field of “post-Quantum crypto” designing algorithms that can be deployed on classical computers and where a quantum computer provides no help or only minimal help in breaking.

    2. Yes I’m aware of your position I just fundamentally disagree the 5th is intended to protect only the testimonial act of “yes I know this language and can translate it”, and also disagree about the relevance of the Doe II dicta.

      Also pretty implicit here is the power to provide testimonial you not only knew the key, but haven’t forgotten it, since “I forgot” would become pervasive immediately. That’s already an issue, like with Rawls. Now you’re compelling a suspect to admit they *still* know the password, against a government arguing otherwise; the contempt hearing is “admit you’re lying or be imprisoned until you do”. That’s clearly pushing past what the 5th Amendment allows. It might not be a serious argument for a 4-digit pin, but a longer passphrase people legitimately forget all the time, even if they’ve used it frequently. Hell I was in college and had to cut my lockbox open with a saw after Christmas break because I forgot the combination lock combo.

      1. The problem of forgotten passwords is a familiar one. I’m not sure what that has to do with how the Fifth Amendment question is resolved. I suppose you could argue that all legal problems are avoided if you can’t get to the point they arise, but that just creates other new legal issues that arise elsewhere; either way, you get legal problems that need answers. But more broadly, yes, it’s definitely one of the civil liberties problems with strong encryption. When the government can’t search itself and needs to rely on a person who knows the password to unlock, the civil liberties harms of getting the password to unlock may be more serious than the civil liberties harms without strong encryption. That’s unfortunate, but there is no promise that technology must always protect civil liberties; encryption is a technology that has good or bad implications depending on how it is used.

        1. You need to think about the reasons the Bill of Rights was added. It was to prevent forcing people to help the government, especially the 5th.

          So its clear just by reading it that your position is entirely wrong. It goes against liberty and for tyranny.

        2. encryption is a technology that has good or bad implications depending on how it is used.

          And the bad involves billions around the world trapped in an ever-deepening well of industrialized dictatorship no longer limited to roving hierarchies of enforcer gangs, but enforcers sitting monitoring at computer stations, themselves monitored, and not because it’s a just society’s elected officials monitoring.

          So, yes. Mundane crimes as important pales compared to eternal dictarorship of billions.

    3. So, I have read your article. In the interest of providing benefit of the doubt, I will recognize that it was an article written for a law journal and not a technical one. That said, the article seems to imply that you lack a certain technical background on just what encryption is.

      The issue typically arises when investigators have a warrant to
      search a cell phone or computer, but they cannot execute the search because the data is encrypted.

      This is inaccurate from a technical standpoint. It is perfectly possible to read the contents of an encrypted drive without the password. It is simply difficult (nigh impossible) to understand said contents without the password, and an appropriate program to perform the decryption. You yourself make this very point later in the article:

      A forensic examination of Doe’s hard drives showed that they were partially encrypted with a program called TrueCrypt. The examiner could access parts of the hard drives, but they were blank. At the same time, the examiner was “unable to access certain portions of the hard drives” that were encrypted using TrueCrypt. The examiner could see the raw data on the drives and knew that TrueCrypt had been used. But he could not know what information (if anything) would be revealed when decrypted.

      So the act of being compelled to provide a password is the same thing as being required to produce a translation key for a unique language known only to the defendant. (Or some small number of people that the defendant has shared that translation key with in the past.) I realize that you assert elsewhere in your article that this is not so, I just think that you are incorrect.

      And that doesn’t even get into the fact that the password isn’t even the actual decryption key.

      In executing the seizure of the device, and then in copying the encrypted contents, the government agents have completed their warrant. It’s simply not my problem that they aren’t able to do anything with the data in their possession, any more than it is if it were written in Linear A. I reject the assertion that I can be compelled to translate the contents of the device for them, particularly if they want to then use those same translated contents to further their prosecution of me.

  3. In a case where law enforcement asks a person for a password; the person refuses. Can law enforcement just seize the phone?

    Example: A citizen films police misconduct on their phone. The DA (or the police) wants the video, issues a warrant. The person says, ‘Buzz off, I have nothing to say”. Police show up, demand the person enters the code so they can search the phone for the video. The person refuses; can the police take the phone and try to crack the phone code themselves?

    Now what?

    1. Isn’t that what the FBI did in the CA terrorism case a couple of years ago? Apple wouldn’t provide the encryption key (or something like that), so the FBI tried to crack the phone code.

      1. Well, in that case the owner of the iPhone was dead, the FBI found the phone in a lake. They engaged an Israeli company to crack the password, which they did successfully.

        My example posits a live owner (like me) who films police misconduct (lets say the police use batons to beat congregants in order to break up a prayer service in NJ), and the cops want the footage….can they simply confiscate the phone if I refuse to give them access?

        This is the question I want answered: When can a citizen tell police to pound sand on giving them access to your phone?

        1. In your scenario, you’re a witness not a suspect so 5A wouldn’t apply. Not 100% sure on the witness aspect but I understand if you’re subpoened then you have to testify (but will receive automatic 5A protection).

        2. Searching a phone over its owner’s objection will typically require a warrant based on probable cause. Seizing a phone pending a warrant would in most cases be reasonable if there is probable cause to believe it contains relevant evidence.

    2. Yes, the police can attempt to access the contents of a phone without its owners cooperation. (This typically requires a warrant, of course.) Whether it’s technologically possible changes every so often, as new phones develop methods to defeat decryption, and vice versa.

  4. It’s all down to whether they want to do the work, I guess. They’ve clearly demonstrated that they don’t have to take a case (Or ten) just because there’s a clear circuit split and a fundamental right implicated. The mere fact that there’s a case or controversy, and somebody, or a lot of somebodies,whose rights might have been violated, doesn’t even begin to move the needle.

    The consequences of the Supreme court getting to decide their own docket are getting too extreme to ignore; Is there any way to change that?

    1. I can see value in having more decisions on this issue judges are creative in developing different methods of approaching the questions.

      1. I see no value in having more decisions once you’ve got even one split on whether a particular governmental action is a rights violation. All you’re doing is prolonging the violation in the event you end up ruling that’s what it is.

        The Court needs to pay more attention to the fact that the defendants and plaintiffs are actual human beings who are suffering and being ruined while the Court accumulates opinions, or more honestly, just dodges doing its job.

        1. The problem is that hundreds of millions of other actual human beings will also be affected by the decision, so the consequences of getting it wrong also matter. I haven’t seen much in recent years to indicate that the Supreme Court is particularly adept at conceptualizing how criminal procedural concepts should apply to new technology, so I’d just as soon have them get a much help as they can.

          (I would add that, for the reasons explained in the post, this decision had no concrete effect on the situation of the actual human defendant.)

  5. Technology has given almost every citizen a technological tool unimaginable decades earlier. Today almost everyone carries their records in an electronic box that can be very difficult or even impossible for the government to break open. Strong encryption for everyone shifts the balance of power towards the citizen and away from the state.

    I struggle to see why this could possibly be considered a bad thing, or why you believe that the Supreme Court should put its finger on the scale to tip the balance back in favor of the state. Surely the Founding Fathers would have rejoiced to see the emergence of technology that vastly bolstered the ability of “the people to be secure in their . . . papers.”

    1. In any case, even if the Supreme Court adopts your preferred interpretation, it will probably turn out to be a Pyrrhic victory, because it will hasten the adoption of software that blitzes the files on the phone when a certain code is entered—which will only prompt law enforcement to lobby for the outlawing of strong encryption.

      1. which will only prompt law enforcement to lobby for the outlawing of strong encryption.

        That is a battle well underway. As is encryption with plausible deniability and self-destruction. It is an arms race and despite infinite resources, agents of the state are always a few steps behind. The problem with strong encryption is it is not particularly user friendly.

  6. Briefed in brief: Justice Massa, in dissent, argues that Prof. Kerr is a reasonable mind.

  7. Given the judicial propensity to decide on the desired result, and then justify it legally; and given the tendency of SCOTUS to move towards a more powerful and dominating government; my prediction is that the Roberts Court, if it decides to take the case, will rule like Massachusetts.

  8. I like my privacy as much as the next person and I find this whole subject very difficult. On the one hand, I don’t like the idea of government being able to snoop through my cell phone, where most of my personal data is to be found. But on the other, I do want the government to be able to protect me and my family from ransomware traffickers, organized crime, child pornographers and terrorists, all of which requires that the government be able to snoop through their data. And that’s what it really boils down to for me: There really are bad guys out there that the rest of us need protection from, providing that protection requires that the government be able to have at least as good cybertools as they do, and not giving the government those tools means they can’t protect me.

    At this time and place in history (my analysis would be different if I lived in China) I think concerns about the government suppressing dissent and using it for other malicious reasons are less than concerns about preventing computer crime. And I would like to look at whether there are other things that could be done to make it harder for the government to use data for nefarious purposes rather than saying they can’t have the data in the first place.

    1. Seems to me that when they seize an encrypted phone they have seized all the data on the phone, just as the warrant permitted them to do.
      That the data is nonsensical to them is their problem, not the problem of the devices owner.

      1. Pretty much my position: They can seize diary, if I wrote it in a language I invented myself I don’t have to translate it for them.

        1. And I think that depends on how high the stakes are. If they’re investigating credit card fraud I probably agree with you. On the other hand, if they have probable cause to believe that your phone contains data that will allow the prevention of another 9/11, then I’m inclined to give the government more leeway.

          1. Then they get to torture the owner.

          2. Natural rights do not dissolve as the “stakes” increase.

            1. I guess they do if you don’t believe they’re actually rights, just good ideas or helpful suggestions.

              1. Well, Brett, as I said below, I’ve never seen a really good argument for the existence of natural rights, and I read a shelf of books on the subject. If you think you have an argument for them, let’s hear it. Otherwise, they get filed next to pink unicorns.

                1. I agree rights are positive, not natural.

                  But a general constitutional exception for terrorism is a very bad idea. Because these things get extended.

                  1. I don’t support a bad person exception to the Constitution. I would say that there are circumstances in which the stakes are high enough that the balance tips in favor of protecting society.

          3. So laws have different meaning based on something?

            1. swillfredo pareto and longtobefree:

              You know, the people whose deaths would be prevented by stopping another 9/11 might have natural rights too, and the people plotting another 9/11 have so completely disregarded the natural rights of their victims, that I’m really not inclined to care.

              And this is why I’m a utilitarian rather than either a left-wing or right-wing ideologue. It allows me to look at the results and say, “On one side of the ledger, I can prevent thousands of innocent people from being killed; on the other, I can protect the natural rights of a group of terrorists trying to kill thousands of innocent people. Gee, whatever should I do?” And if your ideology leads you to the conclusion that protecting the terrorists is more important than protecting thousands of innocent lives, then your ideology deserves scorn, contempt, ridicule and disgust. I’m also not a constitutional originalist for the very same reason.

              Being a utilitarian also allows me, on the other hand, to say that if the government is investigating credit card fraud, then maybe people’s privacy interests are more important, even if it means the fraudsters walk. I get to look at things case by case, which means sometimes the state wins, and sometimes it doesn’t.

              And by the way, for this specific discussion we don’t even need to get to utilitarianism. Longtobefree is arguing that it’s cut and dried that the law clearly and unambiguously means something that I don’t think is clear and unambiguous at all. And, I read a shelf of books by libertarians about natural law and never found it persuasive that such a thing actually exists. Where did they come from? Did Santa slip them into your stockings last Christmas eve? Did the Easter Bunny leave them with the chocolate eggs? Or are you just assuming they exist because of course they exist?

              1. Terrorism is the excuse for curtailing rights but it always seems to end up being used for the War on Drugs.

                1. Yes, eternal vigilance is the price of liberty, which means that you watch the government like a hawk to be sure it isn’t abused. Oh, and ending the war on drugs altogether, which I favor, would fix that problem.

              2. I’m really not inclined to care.

                I understand. Very few people cared what the National Socialist Party of America had to say in Skokie either. Illinois Nazis and Mohammed Atta have the same rights as the rest of us and the state has no more moral authority to deprive them of their rights than anyone else. So we defend their rights, not their actions.

                1. We defend their rights right up until the point that their actions threaten results bad enough that the balance tips in favor of protecting society. I’m not advocating a general “bad person” exception to the Constitution. I’m just saying no rights are absolute and there are circumstances under which the balance tips toward protecting society.

          4. On the other hand, if they have probable cause to believe that your phone contains data that will allow the prevention of another 9/11, then I’m inclined to give the government more leeway.

            I suppose terrorists give a crap about a court ordering them to enter a decryption password.

            FBI: I’m sorry Mr suspected terrorist but we have a court order that says you must enter the password to decrypt this device for us. Its an order and you must obey.
            Suspected Terrorist: Aww gee you got me now. My evil plot is foiled. Curse your court order as it causes my fingers to irresistibly type in the password despite my brain willing them not to.

            1. You’re right that terrorists will disregard court orders. However, the advantage of having a legal system which recognizes that at least some of the time the government has the right to order encryption passwords is that it removes that issue from consideration when the government has to decide how to actually respond in such a situation. It’s less background noise.

              1. It’s less background noise.

                Meanwhile in the foreground the governments definition of depriving individuals of their natural rights “some of the time” erodes to “any time we feel like it”.

                If you conflate natural rights with unicorns then the conversation is pointless.

                1. I’d like to see some evidence, or a good argument, for natural rights and so far I haven’t. And one problem with natural rights is that they are largely in the eye of the beholder. You see it as a natural right to not be forced to de-crypt your phone (is de-crypt a word?) whereas someone else might see health care, good jobs and a decent standard of living as natural rights. It really comes down to what “feels” like a natural right, and different people will emote differently.

                  1. You see it as a natural right to not be forced to de-crypt your phone

                    The natural right is that I have no obligation to assist a process that leads to my prosecution.

                    Forcing me to de-crypt data that will be used to convict me is forcing me to assist in my own prosecution.

                    If the government has executed a search warrant and seized the device then they have possession of the data.
                    The government has the burden of proving that the data implicates me in a criminal act.
                    Its not my problem that they can’t read the data and use it to implicate me, its their problem they can’t read the data.

                    1. DaveSs, even if I agree with your analysis, how is that a “natural” right rather than a “positive” right? And what’s the basis for asserting that natural rights even exist?

                  2. It really comes down to what “feels” like a natural right, and different people will emote differently.

                    No it doesn’t. Respect of natural rights require no positive action. Demanding healthcare, jobs and a standard of living requires either enslaving someone to provide the goods and services, or stealing from someone to pay someone else to provide them. Again, if you cannot see a distinction you add nothing to the conversation.

                    1. But that’s because your bent is small government so you see natural rights as being rights against the government. Someone who doesn’t share your small government view will see things very differently.

                      And you still haven’t answered my question: What evidence or argument is there that natural rights even exist? It strikes me that you’re just assuming that they do, much as other religionists just assume their deities do as well.

                    2. It has nothing to do with a big or small government viewpoint.
                      Its deeper than that.

                      If rights are not natural, and inherent in being an individual human being, but are instead nothing more than a charter of privilege granted by whoever holds sovereign authority over a particular geographic region then things like slavery, or government censorship, or indefinite detention without a proper conviction or any other heinous act permitted or perpetuated by that sovereign cannot truly be said to violate the individual’s rights because rights are a charter granted by the sovereign, not something inherently possessed by the individual. This is true regardless of how that sovereign is organized or came to exist, be it by inheritance, conquest, or even by popular acclaim.

                    3. DaveSs, “X must be true, because if X were not true, the results would be unpleasant” is not a valid argument. OK, so you don’t like the results that follow if there are no natural rights. I’m candidly not that wild about them either. But that is not evidence that natural rights exist, and you still haven’t offered any actual evidence that they do.

                      If natural rights exist, they have to come from somewhere. Where do they come from? Your desire to have them doesn’t create them ex nihilo, any more than my desire to win the lottery causes me to win the lottery.

              2. The exception you deem legitimate will never result in the desired outcome.

                The only thing that would ever come out of the exception is expansion of the exception.

                1. But that’s an argument against having any laws about anything, because any law can be abused and expanded. We can’t make it illegal to drive 80 MPH and drunk through a school zone because the police might use traffic laws as an excuse to search cars for drugs.

                  Unless you’re a total anarchist who believes in no government at all, there will be laws, and the solution to expansion is vigilance. Mission creep is a legitimate problem; expansion is a legitimate problem. Rather than prevent good laws from taking effect, focus on preventing good laws from being expanded into bad laws.

              3. Ruling the other way would also reduce this background noise, so this can’t be used as a justification.

    2. I do want the government to be able to protect me and my family from ransomware traffickers, organized crime, child pornographers and terrorists, all of which requires that the government be able to snoop through their data.

      It’s worth noting that prior to cell phones, the government had techniques to go after such people, which they still have. It isn’t as though the only way to solve crime is to assert a broad power to rifle through everyone’s private files.

      The entire point of the Fourth Amendment is that government doesn’t get maximum power in this area, which means some criminals get away with it. That’s the cost of a free society.

  9. I will always hold that taking any action that could lead to incriminating evidence (key word), then 5A has to apply.

    So being compelled to give a password violates 5A.

    It’s legal to take a suspect’s photo, fingerprints, mouth swabs, handwriting samples, etc, because those are used for identification NOT evidence (i.e. the fingerprint at the crime scene or the camera recording at the bank robbery are the evidence).

    1. If a cop stops you and asks to see your driver’s license, let us know how it works out when you refuse on the grounds that complying might incriminate you for driving without a license.

      1. See Terry Stop.

        Also in my state (VA), if a driver doesn’t have the DL when pulled over, it’s a $10 fine – unless you present a valid DL to the court before the court date.

        1. Apedad, it’s still a Class 2 misdemeanor with a maximum punishment that includes jail time, so no reason to hold back testing your theory.

  10. I’ve studied the Court for 16 terms now, and in my opinion, the mootness question dooms this Cert petition. There’s no active controversy and the Court has been exceedingly loud that it requires an active controversy. (It’s why Seila Law v CFPB is still in danger of a DIG.)

  11. Pennsylvania already has a cert petition pending–the state amicus draws heavily on your work, Orin.
    https://www.scotusblog.com/case-files/cases/pennsylvania-v-davis/

  12. Until qualified immunity — which enables people of ugly character to purchase unconstitutional conduct at wholesale — has been eliminated, my default is ‘police lose’ in close or novel search-and-seizure cases.

    The prospect of a Democratic House-Senate-White House offers hope with respect to qualified immunity’s demise — and a number of other overdue police and court reforms.

    1. Yes who can forget how Obama spearheaded all those reforms of the legal system in 2009? What did he call one of those programs, First Step?

      1. The failure to address abusive policing more forcefully — with torture and the drug war — was among the disappointments of the Obama presidency.

        But it will be Democrats who shape American progress along those fronts, with Republicans whining — and passing around bigoted emails — from the sidelines.

  13. I would use a simpler analogy: Suppose I keep a personal, handwritten journal, containing arguably incriminating data, in a safe in my house, which is good enough the police can’t break in. Would existing precedent allow the police to compel me to unlock it?

    1. If you could invent a safe no one could break into given time you wouldn’t need to be a criminal you’d be Warren Buffet rich.

      1. I can’t invent a safe nobody can break into, but I can certainly invent a safe nobody can break into without destroying the contents. How’s the hypothetical work in that case?

  14. Could we perhaps simplify this whole thing? Once the cuffs are on, police cannot expect ANY involuntary interaction from a suspect whatsoever. Only his lawyer can speak for him. He doesn’t have to talk, look at them, and cannot be forced to touch anything. Until either his case is resolved or he gets on the witness stand. He is always free to do these things, but he can never be compelled under any circumstances. That is a true right to avoid self-incrimination, and it makes many legal issues disappear.

  15. At the end of the day, I can’t comment on the Fourth Amendment doctrine because I am not conversant enough in it.

    But as a policy matter, and as a matter of what Prof. Kerr has called in another context “equilibrium adjustment”, I think you ought to be able to encrypt your phone and the government shouldn’t be able to get into it if they can’t figure out how to crack it.

    The problem is phones contain a bunch of private information that the government was never entitled to get prior to their invention. So to allow these searches destroys the particularity requirement of the Fourth Amendment, where the government has to look for very specific things and only gets to use other evidence if they have already met the particularity requirement and run into something else in plain view.

    So to allow government to now get this information will shift the equilibrium to one where the government has presumptive access to everything in our life so long as they have probable cause to search for even a minor crime like selling marijuana or something. And that’s just a gross imposition of human freedom.

    I don’t know how we reach this result doctrinally, but the proper result is the government doesn’t get your passwords.

  16. How about this as a much simpler approach? The entire “testimonal” analysis is wrong. The underlying purpose of the Fifth Amendment is to prevent the government from forcing you to cooperate with your own prosecution. Demands that you turn over a key to a physical safe (by claiming that the key is a ‘thing’ and not ‘testimony’) were wrong from the start. Extending that logic to passwords just makes them more obviously wrong.

  17. Can the government force someone to provide the combination to a combination lock or to open said lock?

  18. Well, I loved your post and your responses to many of the comments. BTW, I like your modesty and humility in saying I don’t know or am not sure. We have to make decisions and live our lives everyday. Postponing judgment is often not an option. But having a little more humility about it in all aspects of life is a good idea.

  19. Going back to Kastigarr, it is difficult for me to see how, in the most basic sense, providing a password would not fall under derivitive use. Hubbell re-focuses that issue, which slipped away from the court largely in Doe II. That this issue has become so fraught and complicated with different ideations really highlights Thomas’ concurrence in Hubbell and it’s simplicity. You identify two different scenarios with “tell us the code” vs “go in the room and unlock it.” I think it’s a good bit of distinguishing without differentiating, but our current law does create the need to at least discuss those gymnastics. Then there is also the distinction in cases like Seo and Hubbell vs the Pennsylvania case. In the former, they are fishing. They have an idea of what they expect to find, but can’t name it with exact particularity. In the Pennsylvania case (if I’m remembering right) they could provide the exact file name they were looking for. Analyzing all of these distinct situations and interloping legal doctrines underscores how complicated things have gotten since the wall-safe vs. key explanation. I can see Thomas’ opinion being in line with Gorsuch and Kavanaugh already. I can see Breyer finding an appeal in it too. I wonder if they’ll end up scrapping our current framework altogether.

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