Mathias, J.
Smartphones are ubiquitous in modern life. See Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 2484 (2014) … Indeed, a modern smartphone is a “telephone” only as a small part of its many functions. It is more accurately described as a mobile computing and communications device with abilities that were dreams in the realm of science fiction only a few decades ago.
… So, when the State seeks to compel a person to unlock a smartphone so that it may search the phone without limitations, the privacy implications are enormous and, arguably, unique. …
In the present case, the Hamilton Superior Court issued a search warrant ordering Katelin Eunjoo Seo (“Seo”) not only to produce her smartphone, but also to permit the State to search Seo’s smartphone without limitation. Seo refused to unlock the phone, citing her right against self-incrimination under the Fifth Amendment to the Constitution of the United States (“Fifth Amendment,” and “Constitution,” respectively), and the State sought to hold her in contempt for her refusal to unlock the phone. The trial court agreed with the State and held Seo in contempt for refusing to unlock her phone. Seo appeals and argues that the trial court’s order requiring her to unlock her phone violated the guarantee against self-incrimination contained in the Fifth Amendment. We agree. Accordingly, we reverse the trial court’s order finding Seo in contempt and remand for proceedings consistent with this opinion, with specific guidelines as to the reasonable specificity that prosecutors should show concerning the information sought in such an instance.
….
On July 19, 2017, the State charged Seo with Level 6 felony stalking, Class A misdemeanor intimidation, Class A misdemeanor theft, and Class B misdemeanor harassment. … The police arrested Seo at her place of employment that same day. At the time of her arrest, Seo had in her possession a bag that contained an iPhone and an iPad tablet. …
… On August 8, 2017, the State applied for and was granted a warrant to search Seo’s iPhone. Because Seo’s iPhone is locked, the State also sought that same day a warrant and order compelling her to unlock her iPhone so that police could search it. …
On August 15, 2017, Seo, now represented by counsel, notified the State that she would not comply with the order to unlock the phone. Accordingly, the State filed a motion that same day for a rule to show cause why Seo should not be held in contempt. The trial court held a hearing on the matter on September 21, 2017. At the conclusion of the hearing, the trial court entered an order finding Seo in contempt …
….
The determination of whether a party is in contempt of court is a matter within the sound discretion of the trial court. Jones v. State, 847 N.E.2d 190, 199 (Ind. Ct. App. 2006), trans. denied. However, here, the question is whether forcing Seo to unlock her phone or reveal her password is a violation of her Fifth Amendment right against self-incrimination, and this is a pure question of law that is reviewed de novo. See United States v. Neighbors, 590 F.3d 485, 492 (7th Cir. 2009) …
….
… This appears to be a case of first impression in Indiana.
The Self-incrimination Clause of the Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself[.]” U.S. Const. amend. V. … The Fifth Amendment prohibits compelled testimony that is incriminating. Id. (citing Hiibel v. Sixth Judicial Dist. Ct. of Nev., 542 U.S. 177, 190 (2004)). Thus, the government cannot force someone to provide a communication that is “testimonial” in character. …
….
To date, the United States Supreme Court has issued no opinion directly addressing whether compelling a person to unlock a phone or provide a passcode is testimonial. …
….
… Contrasting the facts of the present case with those in Doe II, Seo notes that she is being compelled to do more than merely sign a consent form to obtain records from a third party; she is instead being compelled to reveal the contents of her own mind—her password. She also argues that compelling her to reveal her password is more invasive than just requiring her to assemble documents, which was found to be testimonial in Hubbell. She is instead being compelled to give the State access to the entire contents of her mobile phone, which in all probability contains a wealth of digital information completely unrelated to the focus of law enforcement needs in her case.
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…
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.
….
… To force Seo to reveal her passcode is the very definition of compelling her to reveal the contents of her mind. Accordingly, we hold that compelling Seo to unlock her phone in any manner is testimonial.
….
… In the words of the Third Circuit Court of Appeals, the State must be able to describe with reasonable particularity the digital files it seeks to compel. Apple MacPro Computer, 851 F.3d at 247 (citing Hubbell, 530 U.S. at 30). … Thus, for the foregone conclusion doctrine to apply, the State must be able to describe with reasonable particularity the discrete contents on Seo’s phone—e.g., all texts to D.S. created on Seo’s iPhone—that it is compelling her to not only produce, but to re-create by entering her passcode and decrypting the contents of the phone. This is a burden the State has not met.
….
Going forward the State can, and should, describe the information it seeks and the programs that contain it on Seo’s cellphone, e.g., any texts between Seo and D.S., whether in Apple’s Message application, Facebook, Twitter or otherwise, and the contents of any application that allows a user to change the apparent telephone number originating an electronic communication, such as Google Voice or Pinger. And perhaps more importantly, in its order the court should also require the State to limit its search within messaging to variations of D.S’s name, rather than allowing the State to view everything that is contained in the messaging applications involved. These are not onerous requirements.
….
… Simply said, electronic data and its storage are, by their nature, intrinsically different than records stored on paper, and the law must recognize that difference in order to honor our shared belief in a free society, limited only as reasonably required for public safety. Going forward, we ask reviewing courts of last resort to consider the following structure for resolving decryption requests from law enforcement authorities:
1. Requiring a defendant to decrypt digital data should be legally recognized for what it is—coerced recreation of incriminating evidence—and compulsory process for that purpose should be strictly limited for precisely that reason.
2. In some instances, law enforcement officials will have legitimate need of digital information that is protected by encryption.
3. If the law enforcement request is a bona fide emergency, with verified concern about the possibility of further and immediate serious criminal acts, a warrant that describes the other imminent crime(s) suspected and the relevant information sought through a warrant, both with reasonable particularity, will likely satisfy Fourth and Fifth Amendment requirements.
4. In non-emergency situations, law enforcement should be required to first seek the digital data it wants from third parties, such as internet “cloud” sources, cellphone companies, or internet providers (ISPs), where a defendant has practically, if not explicitly, consented to production upon legal process from a court of competent jurisdiction.
5. Exceptions to the Fourth Amendment and its state analogues, such as the plain view doctrine and the good faith exception, should be inapplicable to, or strictly limited in, the search and seizure of digital data stored on devices owned or controlled by that defendant, or from “Cloud” subscriptions that defendant owns or uses.
….
In this case, we apply these founding principles to modern technology and conclude that compelling Seo to unlock her iPhone, under the threat of contempt and imprisonment, is constitutionally prohibited by the Fifth Amendment because revealing or using the passcode to do so is a testimonial act. In addition, to date, the State has not met the requirements of the foregone conclusion doctrine: to describe with reasonable particularity the information it seeks to compel Seo to produce and why. In this non-emergency situation, the State should also first seek the evidence it feels it needs to prosecute the crime(s) alleged from third-party sources. We therefore reverse the order of the trial court finding Seo in contempt and remand for proceedings consistent with this opinion.
Reversed and remanded.
Riley, J., concurs in result.
May, J., dissents with opinion.
When Seo wanted to have charges brought against D.S., she unlocked her cell phone and gave it to police so they could download its contents. Only by viewing those contents and then talking to D.S. did police learn that charges might instead be brought against Seo. Thus, the police already have proof that the cell phone in question belongs to Seo and that Seo can open it. Given that those facts are a foregone conclusion, Seo’s act of producing her unencrypted cell phone does not provide an inference of any “incriminating testimony” and, therefore, under the specific facts before us, I would hold Seo’s Fifth Amendment right against self-incrimination is not being violated by the order that she unlock the phone. See, e.g., United States v. Spencer, 2018 WL 1964588 (N.D. Cal. 2018) (Fifth Amendment not violated by order for Spencer to decrypt the device where the State demonstrated, by clear and convincing evidence, that Spencer’s ability to decrypt the device is a foregone conclusion). Accordingly, I respectfully dissent.