Eyes may be “windows to the soul,” but could it be said that smartphones contain the “contents of our minds”? That’s what one criminal defense attorney recently argued before a state appellate court, asserting that police investigators executing a search warrant on her smartphone – and prosecutors’ effort to hold her in contempt of court when she refused – were a violation of her 5th Amendment rights.
The trial court agreed, and recently, so did the Indiana Court of Appeals, in a split opinion noting smartphones today are “truly as close as modern technology allows us to come to a device that contains all of its owner’s conscious thoughts, and many of his or her unconscious thoughts as well. 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.”
It’s a case that has raised some very interesting questions about how we navigate well-established constitutional protections for those accused of crime. In the case conclusion here, the majority wrote that courts will probably be continually faced with these kinds of issues that deal with the intersection of rapidly-evolving technology and law. Here, compelling a defendant to unlike her iPhone under threat of contempt and imprisonment is an unlawful violation of her Constitutional Fifth Amendment right against self-incrimination. (In other similar cases nationally, it’s the 4th Amendment’s protections against unreasonable search and seizure that have been cited.) Revealing a smartphone passcode, the court ruled, and prosecutors failed to meet the requirements of the “foregone conclusion doctrine” by describing with reasonable specificity why the information defendant should be compelled to produce and why. (It should be noted that without a passcode, even cellphone makers like Apple can’t extract data from the device, as the encryption key is tied to the passcode. After 10 failed attempts, the phone locks up and might even erase all contents therein. Continue reading