Indiana Police May Force Suspects to Decrypt Smartphones, 8 Other States Tell Court

Restricting law enforcement from compelling suspects to unlock smartphones would create a “zone of lawlessness," Utah, Georgia, Idaho, Louisiana, Montana, Nebraska, Oklahoma and Pennsylvania told the Indiana Supreme Court in an amicus brief posted Monday in Katelin Seo v. Indiana (18S-CR-00595). It's "increasingly rare to have a case that does not include digital evidence,” and digital keys are nearly impossible to crack with brute force, the eight states said. Prohibiting law enforcement from compelling password entry “drastically alters the balance of power between investigators and criminals and renders law enforcement often incapable of lawfully accessing relevant evidence,” they said. Amici ACLU and the Electronic Frontier Foundation argued the Fifth Amendment protects suspects from incriminating themselves via compelled password entry. The states cited an exception: If the compelled act doesn't give the government additional information, the result is a “foregone conclusion” not protected by the amendment, they said. “Entering a password communicates only a single thing: that the person knows the password.” Law enforcement doesn’t need to know the device’s contents, which would be an impossible burden, they said. The ACLU and EFF rejected the foregone-conclusion rationale, saying it has been used only in the context of producing specific, tangible business and financial records. And even so, a state "would have to show with reasonable particularity that it has independent knowledge of any and all information disclosed by the compelled act of production -- including that the phone belongs to the witness and also that the specific, identifiable files it seeks are stored” there, the groups said: Merely showing the person knows the password isn’t enough.