We do not normally address criminal cases (unless they deal with the Rules of Evidence), but sometimes there are exceptions. And the intersection between smartphones and self-incrimination is one of those exceptions.
Seo called the local sheriff’s department, claiming that D.S. had raped her. When Seo met with a detective, she told him that her iPhone contained relevant communications with the accused. With Seo’s consent, the officers completed a forensic download of the device and returned it.
When officers confronted D.S., he claimed that Seo had stalked and harassed him. The officers felt that this was corroborated by the information they obtained from Seo’s phone.
Officers arrested Seo and took possession of her locked iPhone. The officers suspected that Seo had been calling and texting D.S. using some sort of app that would disguise her identity. They asked Seo for the password to her iPhone, but she refused to provide it. Officers then obtained a search warrant that required that Seo unlock her phone. Seo refused, and the State moved to hold her in contempt.
At the hearing on the State’s motion, Seo argued that unlocking her phone would violate her Fifth Amendment right against self-incrimination. The trial court disagreed and found Seo in contempt. Seo appealed that finding. The Court of Appeals reversed, and the Court granted transfer.
The Court began its analysis by noting that the Fifth Amendment only protects communications that are testimonial in nature. So it started by looking at that communication:
Giving law enforcement an unlocked smartphone communicates to the State, at a minimum, that (1) the suspect knows the password; (2) the files on the device exist; and (3) the suspect possesses those files. This broad spectrum of communication is entitled to Fifth Amendment protection unless the State can show that it already knows this information, making it a foregone conclusion.
Providing this kind of information would not be prohibited by the Fifth Amendment if the government already knows it. For example, SCOTUS had already found that the Fifth Amendment did not prevent a subpoena for tax documents because the government already knew this information about those documents. But the Court said that this is the only case in which SCOTUS had found the production a “foregone conclusion.”
After looking at other SCOTUS decisions, the Court summarized them in the following way:
In this way, the act of production doctrine links the physical act to the documents ultimately produced. 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. True, the documents’ contents are not protected by the Fifth Amendment because the government did not compel their creation. But the specific documents “ultimately produced” implicitly communicate factual assertions solely through their production.
Unlocking a smartphone communicates this same kind of information, so it is protected in the same way, unless the foregone conclusion exception applies, and in this case it did not.
In order for the State to demonstrate the foregone conclusion exception, it needed to prove that some particular files existed on the device or that Seo possessed those files. But in this case, the detective
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.
The State cannot force someone to unlock their phone so that it can “scour the device for incriminating information.”
After reaching this conclusion, the Court explained why it believed that “the narrow exception may be generally unsuitable to the compelled production of any unlocked smartphone.”
First, the Court contrasted compelling access to a smartphone with compelling specific business records. “Smartphones are everywhere and contain everything.” Requests for specific documents, on the other hand, can have “unquestionable relevance” to the criminal investigation at issue while being limited in scope.
An unlocked smartphone, however, contains far more private information than a personal diary or an individual tax return ever could. Yet, when suspects are compelled to surrender their unlocked smartphones, there is no limiter like a documentary subpoena for specific files.
The inability to meaningfully limit the access to the phone once given leads to a second concern—that the exception may prove unworkable in the smartphone context.
Today’s smartphones “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” And they can contain, in digital form, the “combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually and sometimes even sexually, in the owner’s life.”
Even if a court order limited the government’s access to certain files identified ahead of time with reasonable particularity, compelling access to the phone gives access to much more than just those files.
Such unbridled access to potential evidence on her iPhone—or any smartphone—raises several complex questions. 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.
Given SCOTUS’s limited application of the foregone conclusion exception, the Court felt that it would be unwise to extend it further.
It is not surprising that courts to recently address this issue—how the Fifth Amendment applies to the compelled production of unlocked electronic devices—have either declined to extend the foregone conclusion exception or have not mentioned it at all. 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.
Despite these concerns, the Court did not give a final pronouncement on the validity of the exception (as it was not necessary in the case). But the concerns it raises means that the State is not going to be able to successfully use it very often in this context.
Justices Massa and Slaughter both wrote dissenting opinions. Justice Massa argued that the case was moot because the underlying case was dismissed. The majority disagreed with this proposition because the State said that it still wanted access to the phone to investigate additional charges. Justice Massa further stated that he found the constitutional question to be “the closest of close calls,” and that he would have decided the matter in the manner described in an article published last year in the Texas Law Review.
Justice Slaughter also believed the case was moot, and he urged his colleagues to adopt the federal standard for determining mootness.
Even if I agreed that Seo has raised a “novel, important issue of great public importance that will surely recur”, that standard cannot be reconciled with the actual-injury requirement implicit in our constitution’s separation-of-powers command. Instead, I would adopt “capable of repetition, yet evading review” as our mootness standard. Applying it here, I would hold that Seo’s Fifth Amendment claim is moot and not reach the merits.
The Fifth Amendment’s protection against self-incrimination precludes compelling a person to provide the passcode to his or her smartphone.