December 18, 2019
Webster Legal Sponsors 2 Lanes at Ryan Diem’s Strike Out Cancer Bowling Fundraiser. Join The Cause on January 25th!
Webster & Garino encourages organizations and individuals to join the law firm in its support of the 3rd annual Strike Out Cancer event. Hosted by retired NFL offensive lineman for the Indianapolis Colts Ryan Diem and his wife Julie, the event combines the fun of bowling with fundraising for pediatric cancer research at Peyton Manning Children’s Hospital Ascension St. Vincent. Woodland Bowl, located at 3421 E 96th St. in Indianapolis, provides the venue for the event scheduled from 6 p.m. to 10 p.m. on Saturday, January 25th, 2020.
Last year’s Strike Out Cancer event brought in over $100,000 to help find cures for children stricken by life-threatening diseases. Webster Legal has signed on to support the event as a Silver Sponsor. The law firm’s $3,000 sponsorship pays for two bowling lanes and two bowling teams or 12 bowlers total. Bowlers receive dinner, drinks, and gifts for participation.
Organizations and individuals have many ways to get involved in this important cause. Corporate sponsors can choose from Platinum, Gold, Silver, and Bronze sponsorship packages that range in value from $10,000 to $2,000. Event organizers also welcome single-lane sponsorships of $1,500. Bowling teams can join for $600, and individual bowlers can participate for $100. People who want to attend without bowling can enjoy dinner and drinks for $50. People may volunteer their time or give donations if unavailable to participate. Contributions can take the form of money or valuable goods, like tickets to concerts or sporting events, that will serve as raffle prizes.
With local NFL star Ryan Diem headlining the Strike Out Cancer event, everyone who contributes will have an opportunity to be a part of a major fundraiser for children struggling with cancer. His fame as a player on the Super Bowl XLI championship team significantly raises the profile of the event. Organizers anticipate a crowd of at least 450 people at Woodland Bowl on Saturday, January 25th, 2020.
The evening starts at 6 p.m. when participants can begin checking in. From 6 p.m. to 7:30 p.m., participants will warm-up, eat dinner, and enjoy cocktails. The bowling tournament starts at 7:30 p.m. and is followed by a short awards program. Afterward, everyone may continue bowling.
Webster Legal plans to play its part in making this year’s pediatric cancer fundraiser more successful than ever. Visit the event website https://www.strikeoutcancerindy.com/ to buy tickets or become a sponsor.
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October 9, 2019
Katelin Eunjoo Seo v. State of Indiana has raised questions of significant importance to the whole country about privacy rights and the reach of law enforcement. William Webster of Webster & Garino argued before the Indiana Supreme Court in defense of his client’s right to withhold the passcode to her iPhone 7 from criminal investigators. Mr. Webster cited her Constitutional Fifth Amendment right against self-incrimination to justify her silence.
He interpreted the state’s demand that she provide the passcode as a form of forced testimony. Many parties beyond Indiana, including multiple states and the American Civil Liberties Union, await the decision in the cell phone supreme court case because of its potentially massive influence on law enforcement’s approach to evidence collection in digital environments.
State Authorities Want Access to Private Digital Information
As the lawyers representing the State of Indiana showed, along with the amicus briefs filed by other states, governmental agencies want nearly unfettered access to people’s digital information. Their arguments in the cell phone court case reflected the belief that placing phone passcodes or other passwords under Fifth Amendment protection would erode authorities’ ability to collect evidence. Given the state, lawlessness would result. Arguments against Ms. Seo’s Fifth Amendment defense also asserted that her passcode represented a form of encryption. Her passcode was styled as somehow criminal although millions of people legitimately rely on encryption technology to protect private and financial data every day.
Authorities Think the Fifth Amendment Does Not Apply to Digital Information
The Indiana Supreme Court case illustrates the difficulties of applying long-established rights to new technologies. In the absence of established legal precedents applying directly to digital technologies, authorities appear willing to default to no legal protection from self-incrimination in regards to digital devices. To defend his client, Mr. Webster cited existing U.S. Supreme Court cases that indicated that Ms. Seo could expect to invoke the Fifth Amendment successfully. In United States v. Hubbell, the Supreme Court decided that a person could withhold answers that would provide a “link in the chain of evidence” that could result in self-incrimination.
Law Enforcement Remains Hostile to Privacy
The state acknowledges that it wants access to her iPhone to search for evidence of her criminal guilt. Her passcode would enable a wholesale examination of all files and location data on her iPhone. Because providing her passcode would open the door to so much of her private information, Mr. Webster argued that her passcode represented a form of testimony because it was stored in her memory. Law enforcement’s desire to compel her to reveal the contents of her memory shows little consideration for her privacy rights.
September 27, 2019
Since April 2019, William Webster of Webster & Garino in Westfield, Indiana, has awaited the decision of the Indiana Supreme Court in Katelin Seo v. State of Indiana. He delivered oral arguments on behalf of the defendant, and recently took some time to explain the importance of the case to the public. He emphasized that the outcome of this Indiana cell phone case could influence the rights of anyone who has a mobile electronic device.
The cell phone Supreme Court case started when Mr. Webster represented Ms. Seo, who was being investigated for intimidation and harassment. A search warrant ordered her to unlock her iPhone 7 so that law enforcement could download its contents and look for evidence against her. Mr. Webster advised her to cite her Constitutional Fifth Amendment protection from self-incrimination and refuse to unlock the phone.
The local trial court found her in contempt, but the appellate court agreed with Mr. Webster’s use of the Fifth Amendment as well as Article 14 of the Indiana Constitution. The State then requested the transfer of the Indiana cell phone case to the Indiana Supreme Court.
Mr. Webster argued that the act of unlocking her phone represented testimony that qualified for Constitutional protection. To invoke the Fifth Amendment, a person must show that compulsion is taking place. The search warrant satisfied this condition. Secondly, someone must prove that the speech or other act serves as testimony. Mr. Webster cited the cases Doe v. United States and United States v. Hubbell that concluded that the act of assembling documents served as testimony. The act functions as testimony because it communicates that documents exist, they are authentic, and they are under the person’s control. The third requirement for invocation of the Fifth Amendment involves demonstrating that the testimony could lead to incriminating evidence.
The State countered Mr. Webster by applying the forgone conclusion doctrine. This doctrine allows law enforcement to overcome the Fifth Amendment when testimony would not add substantially to the evidence. Fisher v. United States presents an example of the forgone conclusion, but it involved tax return documents prepared by a third party.
Mr. Webster pointed out that the forgone conclusion exemption has always applied to documents known to exist and not testimony. Applying it in the Indiana cell phone case would be a misapplication, especially since the State did not show any knowledge that evidence existed on the phone.
Using the forgone conclusion doctrine against testimony, in Mr. Webster’s opinion, would grant law enforcement sweeping powers to force people to unlock their devices. He hopes that the Indiana Supreme Court will uphold protections from self-incrimination meant to protect people from “fishing expeditions” launched by law enforcement.
August 2, 2019
Seo v. State of Indiana has become known within the Firm as the Indiana Supreme Court “cell phone case.” Attorney William Webster of Webster & Garino has worked on this case since July 2017. The defendant, Ms. Seo, sought legal representation from Webster & Garino after investigators armed with a search warrant demanded the passcode to Ms Seo’s iPhone 7 smartphone. Investigators sought evidence to support multiple criminal charges against her arising from accusations of stalking and sending threatening text messages.
Citing her Constitutional Fifth Amendment right against self-incrimination, Ms. Seo refused to supply the passcode. The Trial Court rejected her invocation of the Fifth on the grounds that unlocking a phone did not represent compelled testimony that results in self-incrimination.
Victory on Appeal
After the court declared her in contempt of court, Mr. Webster presented his arguments before the Court of Appeals of Indiana. That Court of Appeals accepted her use of the Fifth Amendment and reversed the Trial Court’s opinion.
Onward to the Supreme Court
The State of Indiana then appealed to the Indiana Supreme Court. On April 18, 2019, arguments were presented in the Indiana Supreme Court cell phone case.
Mr. Webster explained that forcing Ms. Seo to give her passcode amounted to asking her to share the contents of her memory. In his view, this represented compelled testimony that could lead to self-incrimination. He cited Doe v. United States that established a distinction in Fifth Amendment protections between compelling someone to give physical access to potential evidence and compelling someone to share memorized information.
Attorneys representing the State focused on the foregone conclusion exception to the Fifth Amendment. The State built its argument upon Fisher v. United States, which determined that the Fifth Amendment did not apply when someone was compelled to provide financial records. The existence of the documents was a foregone conclusion not dependent on the client’s testimony.
Mr. Webster maintained that it was not a foregone conclusion that incriminating evidence existed on Ms. Seo’s phone. As Mr. Webster explained, Fisher involved specific records prepared by a party other than the defendant. This differed from the desire of the police to access all files on Ms. Seo’s phone.
In response to the State’s arguments about undermining law enforcement, Mr. Webster called on the Supreme Court Justices to recognize the long tradition of protection from self-incrimination in a free society.
Many other states, as well as the American Civil Liberties Union, await the outcome of this Indiana Supreme Court Case. A ruling in favor of Ms. Seo’s Fifth Amendment rights could strengthen privacy rights. Alternatively, a decision that accepts the State’s position could increase the government’s power to pry into personal affairs with few limitations.
July 9, 2019
Attorneys at Webster & Garino Argue Indiana Cell Phone Case Before Supreme Court of Indiana: Can a Defendant be Compelled to Unlock a Cell Phone or is This a Violation of The United State Constitutional Fifth Amendment Privilege Against Self-Incrimination?
On April 18, 2019, William Webster of Webster & Garino argued the Indiana cell phone case before the Supreme Court of Indiana. The case, Katelin Eunjoo Seo v. State of Indiana, Trial Court Cause No. 29D01–1708–MC–5640, and Appellate Court Case Number 18S-CR-595, went up on appeal to the Supreme Court after the Court of Appeals of Indiana ruled in favor of Mr. Webster’s client, criminal defendant, Ms. Seo.
The issue addressed in this Appeal is whether the government can compel a criminal defendant to unlock a cell phone through her recollection and use of a memorized password or whether this violates the United States Constitutional Fifth Amendment and Indiana Constitutional privilege against self-incrimination.
The attorneys at Webster & Garino contend that compelling a criminal defendant to provide a password to her cell phone does, indeed, violate a defendant’s rights against self-incrimination under the Fifth Amendment of the United States Constitution and Article 1, Section 14 of the Indiana Constitution.
The facts involve charges against Ms. Seo for alleged stalking, intimidation, harassment, and theft. Subsequently, the State of Indiana filed thirteen counts of invasion of privacy against Ms. Seo.
Upon the execution of an arrest warrant for Ms. Seo, a cell phone (iPhone 7) was found in her possession. A search warrant was issued. The search warrant compelled Seo to provide her password or to unlock her phone, so law enforcement could perform a forensic download of all its contents. Seo refused to provide police her password and invoked her 5th Amendment privilege against self-incrimination. Seo argued that whether verbally providing her password or entering her password into the phone, she was being forced to reveal the contents of her mind to assist in the prosecution of her case, which violated her 5th Amendment right against self-incrimination.
The State of Indiana conceded that it is seeking to obtain the contents of Ms. Seo’s cell phone to search for incriminating evidence against her in the pending criminal cases, as well as other criminal investigations.
The Trial Court issued an Order finding that the “act of unlocking the phone does not rise to the level of testimonial self-incrimination that is protected by the Fifth Amendment of the United States Constitution or by Article 1, Section 14 of the Indiana Constitution.” The Trial Court found Ms. Seo to be in contempt of court because she would not provide her password and ordered her to jail indefinitely until she provided her password to law enforcement.
Webster & Garino filed a Motion to Stay the Contempt Finding Pending Appeal in the Indiana cell phone case. The Trial Court granted the Motion to Stay pending an Appeal. The State of Indiana then filed additional criminal charges against Ms. Seo. Ms. Seo filed a Notice of Appeal.
Attorney William Webster argued this case before the Court of Appeals of Indiana. In Katelyn Seo v. State of Indiana, 49A02–1603–CT–00567, Mr. Webster requested that the Court of Appeals reverse the Order of the Trial Court as he argued that the Trial Court’s Order violated Ms. Seo’s right against self-incrimination.
The Court of Appeals agreed with Webster & Garino’s position and reversed the Opinion of the Trial Court. The State of Indiana thereafter appealed this matter to the Indiana Supreme Court. William Webster argued the issue before the Supreme Court in Katelin Seo v. State of Indiana, 18S-CR-595, on April 18, 2019.
It is the position of Webster & Garino that providing a password is a testimonial communication. Both the United States Constitution and the State of Indiana Constitution provide protection against self-incrimination. Specifically, the Fifth Amendment of the United States Constitution provides that “No person shall be compelled in any criminal case to be a witness against himself,” and Article 1, Section 14 of the Indiana Constitution states “No person in any criminal prosecution shall be compelled to testify against himself.” See U.S. Const. Am. 5; IN Const. Art. 1, Sec. 14.
This guarantee against testimonial compulsion, like other provisions of the Bill of Rights, “was added to the original Constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed.” See Feldman v. United States, 322, U. S. 487, 489 (1944). This provision of the Amendment must be accorded liberal construction in favor of the right it was intended to secure. See Counselman v. Hitchcock, 142 U.S. 547, 562 (1892); Arndstein v. McCarthy, 254 U.S. 71, 72-73 (1920).
In determining whether Ms. Seo is permitted to invoke her constitutional privilege in response to a Court-Ordered search warrant compelling Ms. Seo to provide her password to unlock her cell phone, the Court must determine if requiring Ms. Seo to provide her password is testimonial and incriminating.
In Doe v. United States, 487 US 201, 212, 108 S. Ct. 2341, 101 L. Ed. 2d 184 (1987), the Supreme Court found: “An act is a testimonial when the accused is forced to reveal his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the government.” In Doe, the Court found that a court order compelling the defendant to sign a consent to authorize foreign banks to disclose records of his accounts did not violate his privilege against self-incrimination. See id., at 202. However, the Court made this significant distinction which would be applicable here: “We do not disagree with the dissent that expression of contents of individual’s mind is testimonial communication for purposes of the Fifth Amendment. We simply disagree with the dissent’s conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like being forced to surrender a key to a strongbox containing incriminating evidence that it is like being compelled to reveal the combination to petitioner’s wall safe.” See id., at 210, fn. 9 (emphasis added). The Court in Doe further stated that “it is the extortion of information from the accused, the attempt to force him to disclose the contents of his own mind that implicates the Self-Incrimination Clause.” See id., at 211 (emphasis added).
As Webster & Garino argued, in this case, Ms. Seo is not being compelled to sign a consent form to obtain phone records from a third-party. Instead, the State of Indiana is seeking the contents of Ms. Seo’s mind to compel her to provide knowledge of her password to assist the State in searching her phone for incriminating evidence. The State of Indiana intends to use this evidence against Ms. Seo in not only her pending criminal cases but also in her pending criminal investigations.
In United States v. Hubbell, 530 U.S. 27, 120 (2000), the Supreme Court found that the defendant’s assembly of documents in response to a subpoena violated his privilege against self-incrimination. The Court stated: “the assembly of these documents was like telling an inquisitor the combination to a wall safe, not like being forced surrender the key to a strongbox.” See id., at 2047. Importantly, the Court in Hubbell further stated that: “Compelled testimony that communicates information that may lead to incriminating evidence is privileged even if the information itself is not inculpatory.” See id., citing Doe v. U.S., 487 U.S. 201, 208, n.6. Further, in Hoffman v. United States, 341 US 479, 486 (1951), the Supreme Court emphasized that “the privilege afforded not only extends to answers that would in themselves support a conviction… but likewise, furnish a link in the chain of evidence needed to prosecute the claimant…”
If just the assembly of documents was found by the U.S. Supreme Court to be in violation of a defendant’s privilege against self-incrimination, then, as Webster & Garino argued, surely requiring Ms. Seo to provide her password to the State of Indiana to assist in the prosecution of her own criminal cases violates Ms. Seo’s rights against self-incrimination. There is no dispute in this matter that the State of Indiana is seeking to obtain Ms. Seo’s password to search her phone for incriminating evidence. This is the very “link in the chain” identified and prohibited in Hoffman.
The State argued that providing her password is not testimonial as the State is not seeking Seo to provide her password only to unlock her phone, arguing that Seo could unlock her phone without ever informing law enforcement of her password. However, by unlocking her phone Seo is communicating that the contents of her phone (which include text messages, emails, pictures, calendars, videos, all her movements with geo-positioning and a multitude of additional information) exists, are under her control and authentic. Webster and Garino argued that the communicative aspects of unlocking the phone, as provide above, are testimonial and protected under the 5th Amendment.
The State of Indiana argued in the Indiana cell phone case that even if Ms. Seo’s password is a testimonial, it is not protected under the 5th Amendment if it is a “foregone conclusion” that Ms. Seo has access and control over the phone at issue. In support of this argument, the State relied on Fisher v. United States, 425 U.S. 391 (1976), in which the Court found that requiring a client’s attorneys to provide documentation prepared by the client’s accountants did not violate the client’s Fifth Amendment rights against self-incrimination. The Court reasoned: “Surely the Government is in no way relying on the truth-telling of the taxpayer to prove the existence of or his access to the documents. The existence and location of the papers are a foregone conclusion, and the taxpayer adds little or nothing to the total of the Government’s information by conceding that he, in fact, has the papers.” See id., at 421.
However, the facts are not analogous to Fisher. In Fisher, the client’s accountant prepared documents, which was sent to the client and then later forwarded to the client’s attorney. The Court reasoned that the existence of the documents was a foregone conclusion and that their existence did not rely on any statements made by the petitioners. In contrast, in this matter, there is no foregone conclusion that anything exists on Ms. Seo’s phone. The State of Indiana is relying on statements made by Ms. Seo as they are attempting to compel her to provide the password to her phone.
Further, the State of Indiana is not seeking documents prepared by a third party but is seeking all the files on Ms. Seo’s phone. As such, the State is seeking that Ms. Seo make a statement in the form of her password. This goes to the heart of the privilege against self-incrimination afforded by the United States and Indiana State Constitutions.
Webster and Garino argued that the foregone conclusion doctrine has never been applied by the US Supreme Court to testimony only documents in possession of 3rd parties. Webster and Garino further argued that if Seo’s password was a foregone conclusion, then the State would already know her password.
In addition to the arguments set forth above, it is the position of Webster & Garino that the State of Indiana presented primarily policy arguments, assumptions and hypotheticals that suggested that if the Indiana Supreme Court affirms the decision of the Indiana Court of Appeals, States will be incapable of executing search warrants and obtaining evidence, a new zone of lawlessness will be created where child pornographers and drug dealers can operate without fear of law enforcement, and the public will want and encourage lawmakers to pass new draconian anti-privacy legislation.
Even though encryption is relatively new in our society, the frustration articulated by the States is not: investigators believe additional evidence of a crime exists and the person investigators believe has the knowledge necessary to obtain that evidence is the criminal suspect. Decades if not centuries of precedent and practice support the conclusion that a suspect cannot be compelled to recall and use information that exists only in his or her mind to aid the government’s prosecution. See Curcio v. United States, 354 US 118, 128 (1957). Absent a grant of immunity, that compulsion violates the Fifth Amendment privilege against self-incrimination.
Counsel recognizes the challenges law enforcement agencies face in criminal investigations and the vital role they play in our society. However, the Fifth Amendment should not be viewed as an inconvenience to law enforcement. The Court’s focus should be on the zone of liberty the Fifth Amendment affords — not the hypothetical zone of lawlessness the States propose the Fifth Amendment creates. This guarantee against testimonial compulsion, like other provisions of the Bill of Rights, “was added to the original Constitution in the conviction that too high a price may be paid even for the unhampered enforcement of the criminal law and that, in its attainment, other social objects of a free society should not be sacrificed.” See Feldman v. United States, 322, U. S. 487, 489 (1944). This provision of the Amendment must be accorded liberal construction in favor of the right it was intended to secure. See Counselman v. Hitchcock, 142 U.S. 547, 562 (1892); Arndstein v. McCarthy, 254 U.S. 71, 72-73 (1920).
The State of Indiana also framed the term and use of “encryption” as something secretive or concealing, suggesting that someone who uses encryption does so for the nefarious purpose of concealing the true meaning of a message. The States went so far as pointing out that the word encryption is based in part from the Greek word meaning “secret writing.” See Brief of Amici Curiae State of Utah et al, p. 7-8. The States suggested that it is “essentially impossible for even the most powerful computers to break a digital lock by current brute force techniques that try every combination.” Id. p. 10.
In reviewing the State’s explanation of encryption, one could come to the opinion that encryption is a tool only reserved for criminal enterprises. Further, in making their argument, the State relied on articles written by Orin S. Kerr, who is a former federal computer crimes investigator. However, encryption is integral for safeguarding the privacy and security of sensitive, electronically stored information. The use of encryption is now routine practice for individuals and businesses. Computer and software manufacturers consider disk encryption a basic security measure, and it is a standard feature on most new computers. Device encryption is also a standard feature for the leading smartphone operating systems, Apple IOS and Android. In addition, government agencies recommend encryption to protect personal information. As Webster & Garino argued, in our increasingly connected world where we share and transmit information, encryption is an important integral part of modern life.
Even though encryption offers presumably millions of people the benefit of safeguarding private information, despite the State’s contention, encryption is not unbreakable. The government can use a variety of techniques to gain lawful access to encrypted information without compelling the aid of a criminal suspect. For example, law enforcement could circumvent many forms of encryption by using software or hardware that exploit flaws in the encryption program or the device itself. To illustrate, investigators were able to break the encryption on an iPhone used by the perpetrator of the San Bernardino terrorist attack. Some reports have suggested that law enforcement agencies have contracted with companies and purchased tools to bypass encryption. Further, law enforcement could obtain a warrant to install a camera to record a suspect’s keystrokes or install software called “keylogger” that captures the characters typed using the device. The above methods, for example, would provide law enforcement with the password without compelling the criminal suspect to provide his or her password.
One final argument presented by the State in the Indiana cell phone case is that “the Indiana Court of Appeals’ Opinion’s holding drastically alters the balance of power between investigators and criminals and renders law enforcement often incapable of lawfully accessing relevant information.” Id. p.11. However, Webster & Garino argued that encryption does not drastically alter the balance of power. In fact, in Ms. Seo’s case, prosecutors were able to obtain additional evidence from other parties, which resulted in Ms. Seo pleading guilty to all her criminal cases, without the need of compelling her to provide the password to her phone.
As indicated above, encryption protects essential and intimate details of our lives. Technology creates long-lasting records of photos, voice recordings, videos, text messages, emails, calendars, internet searches, and other various documents and files. Further, our mobile devices create logs of where we have been, who we are with, and where we are going. See United States v. Jones, 565 US 400, 415 (2012) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious and sexual associations.”). Encryption is designed to help to protect the above information in the modern world. As the Eleventh Circuit stated, encryption is not merely a tool for criminals. Cf. Doe II, 670 F.3d at 1347 (“Just as a vault is capable of storing mountains of incriminating documents, that alone does not mean that it contains incriminating documents, or anything at all.”).
The Supreme Court has not yet issued a decision on the cell phone case in Indiana. The Opinion will have significant implications for the citizens of Indiana. Courts and lawmakers around the country are also likely awaiting a decision as there is little direct case law on this issue given the rapidly-evolving changes in technology. Numerous states, including Utah, Georgia, Idaho, Louisiana, Montana, Nebraska, Oklahoma, and Pennsylvania, joined to a filed Amicus Brief before the Supreme Court – presenting arguments in support of the State of Indiana. The ACLU also filed an Amicus Brief before the Indiana Supreme Court in support of Ms. Seo’s position, which can be viewed here.
Webster & Garino has been contacted by attorneys and law schools across the nation to discuss this matter for the Indiana cell phone case.
LIST OF AUTHORITIES
Arndstein v. McCarthy, 254 U.S. 71 (1920)
Counselman v. Hitchcock, 142 U.S. 547 (1892)
Curico v. United States, 354 U.S. 118 (1957)
Doe v. United States, 487 U.S. 201 (1988)
Feldman v. United States, 322, U. S. 487, 489 (1944)
Fisher v. United States, 425 U.S. 391 (1976)
Hoffman v. United States, 341 U.S. 479 (1951)
In Re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Circuit 2012)
United States v. Hubbell, 530 U.S. 27 (2000)
United States v. Jones, 565 U.S. 400 (2012)
Watkins v. State, 85 N.E.3d 597 (Ind. 2017)
Fifth Amendment of the United States Constitution
Article 1, Section 14 of the Indiana Constitution
Ind. Code § 35-33-5-11 (West 2016)
April 23, 2019
The content in this article is taken from courts.in.gov. view the article here.
The State charged Seo with stalking and invasion of privacy for allegedly harassing D.S. and violating a protective order prohibiting her from contacting D.S. When police arrested Seo, she possessed a smartphone. The number of the phone matches that of a phone used to send numerous texts to D.S. It also appears to be the same phone that Seo previously unlocked voluntarily and gave to police when she made criminal allegations against D.S.
The Hamilton Superior Court issued a warrant compelling Seo to unlock the phone so police could search it. Seo refused, citing her Fifth Amendment right against self-incrimination. The court found Seo in contempt. To purge herself of contempt, the order requires Seo to unlock the phone and disable the passcode function or change the phone’s passcode to 1234.
Seo appealed, and a majority of the Court of Appeals reversed. Seo v. State, 109 N.E.3d 418 (Ind. Ct. App. 2018), vacated. Judge Mathias concluded the contempt order violates the Fifth Amendment protection against self-incrimination because it compels Seo to provide a testimonial communication. Judge Riley concurred in the result. Judge May dissented and would hold that requiring Seo to unlock the phone does not violate the Fifth Amendment because the foregone conclusion doctrine applies given that the State already knows Seo owns the phone and can unlock it with her passcode.
The State filed a petition to transfer, challenging the Court of Appeals opinion. The Indiana Supreme Court has granted transfer and assumed jurisdiction over the appeal.
To check out the video click here.
March 27, 2019
If you’ve ever gotten a ticket, you can join this lawsuit . . .
According to a class action lawsuit from attorneys William Webster, Joe Duepner and Andrew Dollard, the City of Noblesville has been violating the constitutional rights of every citizen who has been issued a parking ticket in the last several decades.
According to Webster, there is no procedure in place to diswebster law firmpute a parking ticket issued by the City of Noblesville. The City issues a ticket, they charge you fines, and if you do not pay the fines they will immobilize your vehicle with a ‘boot’ or tow it.
March 21, 2019
A smartphone can reveal a lot about a person.
“Your life is on your mobile device,” said Westfield defense attorney William Webster. “It’s very personal in nature, and really kind of an extension of you.”
Webster had that in mind after his client came to him with a quandary: Police wanted access to her smartphone and had obtained a search warrant. But officers couldn’t get into the device without a passcode. The client, Carmel resident Katelin Seo, 37, was facing accusations of stalking and harassment. A Hamilton County judge ordered Seo to unlock the phone.
February 26, 2019
W&G Landmark Indiana Court of Appeals Case:
Smartphone privacy ruling tests how technology affects rights
A consequential Indiana Court of Appeals ruling on an issue of first impression last month marked one of the first times state courts have been asked to reconcile civil rights with advancing technology. The question: considering the personal nature of the contents of a person’s smartphone, can an individual be forced to unlock a smartphone without violating the Fifth Amendment?
In the case of Katelin Eunjoo Seo v. State of Indiana, 29A05-1710-CR-2466, the court answered that question with a “No,” finding Katelin Seo could not be compelled to unlock her iPhone 7 as part of a criminal stalking investigation against her. Doing so, the court found, would be testimonial and, thus, a violation of her Fifth Amendment right against self-incrimination.
But the Aug. 21 ruling far from settles the issue. Judge Paul Mathias penned the 43-page majority decision while Judge Melissa May authored a 25-page dissent. The third panel member, Judge Patricia Riley, concurred in result with Mathias’ opinion, meaning the majority ruling failed to receive true support from two of the judges.
That reality begs Indiana Supreme Court review, Indianapolis criminal defense attorney Bradley Keffer said, and the state has already announced plans to file a petition to transfer. But even without a clear consensus, Keffer said the Seo ruling begins an important conversation in the judiciary about how technology should factor into constitutional analyses.
“The court truly began to wrestle with this sort of application of the Fifth Amendment,” he said. “… Generally speaking, courts are loath to wade into … the constitutional implications associated with advances in technology.”
Contents and conclusions
Seo began when Katelin Seo was charged with invasion of privacy, stalking, intimidation and other charges related to her alleged harassment of D.S. The Hamilton Superior Court issued a warrant for Seo to unlock her cellphone and provided an option for her to remove the passcode feature or change the passcode to 1234.
Seo refused, and her attorney, William Webster, argued Fifth Amendment self-incrimination protections blocked law enforcement from compelling her to comply. Asking a citizen to unlock her smartphone is the same as asking her to disclose the “contents of her mind,” Webster said. The state, however, relied on the foregone conclusion doctrine to support its position that the Fifth Amendment was inapplicable.
Specifically, the state claimed it was a foregone conclusion that Seo knew her passcode and that there were text messages to D.S. on the device. May focused on that argument in her dissent, noting that before the warrant was issued, law enforcement had already viewed Seo’s phone and had seen her messages to D.S.
“Given that those facts are a foregone conclusion, Seo’s act of producing her unencrypted cell phone does not provide an inference of an ‘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,” May said.
Mathias, however, agreed with Webster’s “contents of the mind” argument, relying on Doe v. United States, 487 U.S. 201 (1988), to liken the unlocking of the phone to providing the combination to a wall safe — an act protected by Fifth Amendment self-incrimination prohibitions in Doe.
“(W)e consider Seo’s act of unlocking, and therefore, decrypting the contents of her phone, to be testimonial not simply because the passcode is akin to the combination to a wall safe as discussed in Doe,” he wrote. “We also consider it testimonial because her act of unlocking, and thereby decrypting, her phone effectively recreates the files sought by the state.”
Wading into tech
Mathias’ reliance on the concept of encryption underscores the fact that Seo’s case marked a significant departure from traditional Fifth Amendment analyses, which generally focus on paper documents, Keffer said.
All iPhone 7 data is encrypted when locked. However, unlocking the phone decrypts its data, making it possible to read. That fact, Mathias said, means unlocking the phone is the same as “creating” its contents, an act that is inherently testimonial.
But May also dissented on that point, noting Seo was being compelled only to unlock the phone, not “to download new Apps or to write and send new text messages.” Thus, the data the state was seeking was data that already existed.
“As such, decryption does not use the contents of Seo’s mind to create new information,” May said. “Instead, pre-existing information is simply being rendered intelligible.”
Speaking with Indiana Lawyer after the ruling, Webster acknowledged courts nationwide have been split on similar issues, and the Indiana Attorney General’s Office said May’s dissent was more in line “with the majority of jurists and scholars around the country.” The true dichotomy in this case, Keffer said, is the struggle between applying the law to specific technological advances and developing broader legal principles that can be applied to future technological advances.
“It’s a tug of war,” Keffer said. “Are we going to be creating timeless opinions like the opinions of old, or are we going to be bouncing back and forth as technology advances?”
Fourth Amendment questions?
Aside from grappling with the role technology plays in Fifth Amendment analyses, the court’s opinion also tiptoed around Fourth Amendment considerations that underly Seo’s case, yet were not specifically at issue on appeal. The majority held the warrant for Seo’s phone did not describe with reasonable particularity the digital information it covered, while the dissent said that level of particularity is not required under the Fifth Amendment.
But the breadth of search warrants is certainly an issue to be considered under the Fourth Amendment, and Webster acknowledged the opinion subtly questioned his decision not to raise a Fourth Amendment argument. His strategy, though, was to take a simplistic approach to his client’s case and determine whether her right to remain “silent” applied here.
“I wanted to get through the Fifth Amendment, and if it (unlocking the phone), doesn’t have that right, then I think it steers right into the Fourth Amendment,” Webster said.
Though the breadth of the search of the phone wasn’t explicitly at issue in Seo, Mathias ended the majority opinion by laying out a framework he urged courts of last resort to follow when “resolving decryption requests from law enforcement authorities:”
• Requiring that data decryption be recognized as data recreation and, thus, strictly limited;
• Recognizing that law enforcement will have legitimate need of encrypted data in some instances;
• Requiring that law enforcement requests in bona fide emergencies be supported by a warrant describing other imminent crimes and the relevant information that is sought;
• Requiring that law enforcement to seek digital data through third parties in non-emergency situations, and;
• Recognizing that Fourth Amendment exceptions and state analogs are inapplicable or limited when dealing with “the search and seizure of digital data stored on devices owned or controlled by the defendant, or from ‘Cloud’ subscriptions that defendant owns or uses.”
Putting such a framework in place recognizes that technology-related constitutional cases will be fact-sensitive, so courts should consider the particularities of each case when deciding when technological data can be compelled, Webster said. But whether that analysis sticks will likely be decided by the state’s five justices, Keffer said.
The state’s appellate brief is due Sept. 20.•