FILED
                                                                              Aug 21 2018, 9:51 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      William J. Webster                                         Curtis T. Hill, Jr.
      Carla V. Garino                                            Attorney General of Indiana
      Webster Legal, LLC                                         Ellen H. Meilaender
      Westfield, Indiana                                         Supervising Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Katelin Eunjoo Seo,                                        August 21, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 29A05-1710-CR-2466
              v.                                                 Appeal from the Hamilton
                                                                 Superior Court
      State of Indiana,                                          The Honorable Steven R. Nation,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 29D01-1708-MC-5640




      Mathias, Judge.


[1]   Smartphones are ubiquitous in modern life. See Riley v. California, ___ U.S. ___,

      134 S. Ct. 2473, 2484 (2014) (“[M]odern cell phones, . . . are now such a

      pervasive and insistent part of daily life that the proverbial visitor from Mars

      might conclude they were an important feature of human anatomy.”). The

      Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                       Page 1 of 68
      amount of personal information contained on a typical smartphone is

      astounding: photographs, contacts, emails, text messages, not to mention the

      personal information that is contained in widely used smartphone social-media

      applications such as Facebook, Instagram, LinkedIn, or Twitter. United States v.

      Wurie, 728 F.3d 1, 7 (1st Cir. 2013) (noting that “[I]nformation [contained on a

      modern cell phone] is, by and large, of a highly personal nature: photographs,

      videos, written and audio messages (text, email, and voicemail), contacts,

      calendar appointments, web search and browsing history, purchases, and

      financial and medical records.”). 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.


[2]   Thus, when the State seeks to search a smartphone, it seeks to inquire into far

      more than “old-fashioned” information physically contained on paper. In truth,

      nearly every smartphone contains data stored and arranged in such a way as to

      uniquely reveal the innermost thoughts of its owner. A smartphone is a trove of

      extremely personal information that is almost always embarrassing, and

      potentially, incriminating. A modern smartphone, with its central purpose of

      connecting its owner to the Internet and its ability to store and share incredible

      amounts of information in “the Cloud” of online storage, is 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


      Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 2 of 68
      search the phone without limitations, the privacy implications are enormous

      and, arguably, unique. Cf. United States v. Otero, 563 F.3d 1127, 1132 (10th Cir.

      2009) (“The modern development of the personal computer and its ability to

      store and intermingle a huge array of one’s personal papers in a single place

      increases law enforcement’s ability to conduct a wide-ranging search into a

      person’s private affairs[.]”).


[3]   In the present case, the Hamilton Superior Court issued a search warrant

      ordering Katelin Eunjoo Seo (“Seo”) not only to produce her smartphone,1 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




      1
        The dissent claims that we “unnecessarily” hold that “a passcode is the equivalent of a combination to a
      wall safe,” because the trial court did not ask Seo to reveal her password. Slip op., infra, at 55–56. The trial
      court’s warrant and order, however, require Seo to unlock, and thereby decrypt, her phone. And the only
      way to unlock and decrypt the phone is for Seo to enter her passcode into the phone. As explained infra, we
      conclude that there is no meaningful difference between forcing Seo to reveal her passcode and forcing her to
      input her passcode into her phone and then handing it over to the police. Thus, we do not share the dissent’s
      belief that our holding is unnecessary.

      Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                          Page 3 of 68
      specific guidelines as to the reasonable specificity that prosecutors should show

      concerning the information sought in such an instance.


                                    Facts and Procedural History
[4]   In July 2017, Seo contacted the Hamilton County Sheriff’s Department

      (“HCSD”) claiming to be a victim of a rape committed by D.S. HCSD

      Detective Bill Inglis (“Detective Inglis”) investigated Seo’s allegations. As part

      of his investigation, Seo allowed Detective Inglis to view her smartphone, an

      Apple iPhone 7 Plus. With Seo’s consent, Inglis also did a “forensic download”

      of the contents of Seo’s iPhone and returned it to her. Tr. p. 6.


[5]   After reviewing the contents of Seo’s iPhone, Inglis decided not to pursue any

      charges against D.S. Instead, based on the contents of the phone and D.S.’s

      statements, Inglis began to investigate Seo for stalking and harassing D.S.

      When questioned, D.S. explained to Inglis that he received numerous calls and

      text messages from Seo’s phone, up to thirty per day. At some point, however,

      the phone number of the sender of these messages and calls began to change

      daily, yet the conversations were linked and apparently sent by the same

      person. Inglis suspected that Seo was using a third-party application to change

      her phone number.2




      2
       Detective Inglis mentioned two apps that could be used to change the caller’s cellphone number: Google
      Voice and “Pinger,” Tr. p. 8, the latter apparently a reference to the “Text Free Calling” app by Pinger, Inc.,
      both of which are available for download on the Apple App Store for iPhones.

      Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                         Page 4 of 68
[6]   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 information alleged that Seo had stalked and

      harassed D.S. with the intent to get him to either marry her or impregnate her

      against his will. 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. Seo admitted that the phone was hers but claimed

      that the iPad belonged to someone else. The iPhone appeared to be the same

      one she had earlier provided to the police, and the number for the iPhone

      matched that of the phone used to make the earlier calls and send the text

      messages to D.S. The police took possession of Seo’s iPhone at this time.


[7]   On July 21, 2017, the State charged Seo under a new cause with thirteen counts

      of Class A misdemeanor invasion of privacy, alleging that Seo violated a

      protective order preventing her from contacting D.S. 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. The trial

      court issued a warrant providing in relevant part:


              WHEREAS, William Inglis of the Hamilton County Sheriff’s
              Department has given sworn probable cause testimony for
              issuance of a Search Warrant. Based on that testimony, the Court
              finds probable cause exists for issuance of this Search Warrant.

              You are, therefore, authorized and ordered in the name of the
              State of Indiana, with necessary and proper assistance, in the

      Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 5 of 68
                 daytime or nighttime, to search the property located at and
                 identified as:

                 5.    for the purpose of searching items described in the sworn
                 evidence, to wit:

                      That Katelin Eunjoo Seo be compelled to unlock (via
                      biometric fingerprint passcode, password or otherwise) the I
                      Phone [sic] 7 plus with serial number ************ and
                      cellular phone number ******* pursuant to Indiana Code 35-
                      33-5-11(a) and that if she fails to comply with this order, that
                      she be subject to the contempt powers of the court.

                 You are further authorized to deliver any of said items to an
                 appropriate facility for analysis and comparison against other
                 evidence gathered in the investigation.


      Appellant’s App. p. 49.3


[8]   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, which reads in relevant part as follows:

                 1. The State requested and the Court granted a search warrant
                    for the contents of the phone at issue (iPhone 7 plus bearing
                    serial number ************, previously connected with
                    number **********) under cause number 29D01-1708-MC-



      3
          The probable cause affidavit supporting the issuance of this search warrant is not in the record before us.


      Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                            Page 6 of 68
             5624, and the Court took Notice of such cause for the purpose
             of ruling in this cause.

        2. The State requested and the Court granted a search warrant
           compelling the Defendant to unlock the phone by biometric
           fingerprint access, keycode, password, passcode, or otherwise
           under cause number 29D01-1708-MC-5640.

        3. The Court finds that the statutory requirements as found in
           Ind. Code 35-33-5-11 have been satisfied in this cause.

        4. 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.

        5. Katelin Eunjoo Seo is found to be in contempt of Court for
           failure to abide by the warrant issued under this cause: 29D0l-
           1708-MC-5640.

        IT IS THEREFORE ORDERED, ADJUDGED AND
        DECREED as follows:


        1. That Katelin Eunjoo Seo is ORDERED incarcerated in the
           Hamilton County Jail and she shall surrender herself at the
           Hamilton County Jail no later than 4:30 p.m. on today’s date,
           Friday, September 22 unless and until she purges herself of
           Contempt of Court.

        2. That in order to purge herself of Contempt of Court, Katelin
           Eunjoo Seo is ORDERED to unlock the phone at issue and to
           (1) disable the passcode function on the phone, or (2) to
           change the passcode on the phone to 1234.


Appellant’s App. pp. 6–7 (emphases in original).




Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 7 of 68
[9]    The same day that the trial court entered its contempt order, Seo filed a motion

       to stay the contempt sanction pending appeal, which the trial court granted on

       September 25, 2017. Seo filed a notice of appeal on October 20, 2017.4


                                                I. Standard of Review

[10]   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) (holding that the question of whether voice identification based on

       in-court proceedings for a criminal defendant violated his Fifth Amendment

       right against self-incrimination was a question of law reviewed de novo); Conn v.

       State, 89 N.E.3d 1093, 1097 (Ind. Ct. App. 2017) (noting that pure questions of

       law are reviewed de novo), trans. denied.


                                                      II. Encryption

[11]   Because this case involves the technical aspects of locking and unlocking a

       modern smartphone, and the current caselaw considers the method of

       unlocking that information somewhat dispositive as to whether unlocking can




       4
        We held oral argument on this case on May 1, 2018. We commend counsel for the quality of their written
       and oral advocacy.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                   Page 8 of 68
be coerced, a brief overview of the underlying technology is in order. One law

review note succinctly summarizes encryption as follows:


        Encryption is the process of concealing information, and all such
        systems have several similar characteristics. At its most basic
        level, encryption involves transforming information or data,
        called “plaintext,” into a coded form that cannot be understood
        by outsiders. The process is performed according to the
        encryption algorithm, a set of rules that governs how the
        plaintext is transformed. While this can be as simple as
        substituting each letter in a message with a corresponding
        number, modern encryption algorithms often consist of a
        complex series of mathematical functions. Regardless of the
        manner of encryption, the result is that the plaintext is made
        unintelligible to outsiders.


Andrew J. Ungberg, Protecting Privacy Through a Responsible Decryption Policy, 22

Harv. J.L. & Tech. 537, 540 (2009) (citation footnotes omitted).5 Another

commentator further explains:


        When . . . [data] is encrypted using current technology an
        “encryption key” is required to decrypt the message. An
        encryption key is basically a very long string of numbers that is
        stored in the encryption software’s memory. The software users
        do not have to remember this long number; instead [they] can
        enter a more easily remembered password or passphrase, which
        in turn activates the encryption key. When the government seeks
        to compel an ordinary citizen to turn over the means by which he




5
 For a more detailed look at encryption and possible ways to defeat encryption, see Orin S. Kerr and Bruce
Schneier, Encryption Workarounds (March 22, 2017), 106 Geo. L.J. 989 (2018).

Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                     Page 9 of 68
                 can decrypt the data, the disclosure order will typically compel
                 him to turn over his password rather than the encryption key.


       Michael Wachtel, Give Me Your Password Because Congress Can Say So, 14 U. Pitt.

       J. Tech. L. & Pol’y 44, 48 (2013) (citations and quotations omitted).


                                                   III. iPhone Security6

[12]   The iPhone 7 Plus at issue here is locked, and therefore, the contents of the

       phone are encrypted. See Apple, iOS Security p. 14 (Jan. 2018).7 That is, even if

       the digital contents of the phone’s storage could be extracted from the phone,

       those contents would still be undecipherable without also unencrypting the

       contents.


[13]   The contents of the iPhone 7 series are encrypted with a strong 256-bit AES

       encryption key.8 Instead of requiring each user to memorize a 256-bit key, the

       key is instead itself encrypted with a “system key” unique to each phone, plus




       6
         The discussion that follows is focused on the smartphone at issue in this case, an iPhone 7 Plus. However,
       the substance of the discussion also applies to smartphones manufactured under other brand names,
       generally, and, in some instances, specifically.
       7
           https://www.apple.com/business/docs/iOS_Security_Guide.pdf
       8
         AES stands for “Advanced Encryption System.” Realnetworks, Inc. v. DVD Copy Control Ass’n, 641 F. Supp.
2d 913, 927 (N.D. Cal. 2009). A 256-bit AES encryption key is almost unfathomably strong because there are
       2256 possible keys. 2256 is approximately equivalent to 1077. By way of comparison, scientists estimate that
       there are 1086 (one-hundred thousand quadrillion vigintillion) atoms in the entire universe. See John Carl
       Villanueva, How Many Atoms Are There in the Universe? (Apr. 22, 2018),
       https://www.universetoday.com/36302/atoms-in-the-universe/. Thus, guessing a 256-bit key is effectively
       impossible. See Kerr & Schneier, supra at 994 (noting that cracking a 256-bit key is “beyond the reach of any
       foreseeable computer technology,” thus rendering a “brute force” repeated guessing of the key “effectively
       impossible.”). But the implementation of an encryption system may contain errors that allow someone to
       bypass this seemingly unbreakable security. Id. at 1005–06.



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                      Page 10 of 68
       the user-chosen passcode. Id. When a user enters her passcode, this is combined

       with the system key to unlock the “File System Key,” which is used to decipher

       the contents of the phone.9 Id.


[14]   Thus, each time a user unlocks her phone, she is enabling the phone to recreate

       all of the information on the phone, taking what was once indistinguishable

       from random noise and deciphering it into the requested data. See Jeffrey Kiok,

       Missing the Metaphor: Compulsory Decryption and the Fifth Amendment, 24 B.U.

       Pub. Int. L.J. 53, 59 (2015) (discussing the process of on-the-fly encryption and

       decryption).




       9
         More precisely, a file written to the storage on the iPhone can be of one of four different “Data Protection
       Classes,” as assigned by the app that creates it. Apple, iOS Security p. 15. Files that are in the “Complete
       Protection” class are protected by a class key derived from the user passcode and the phone’s unique
       identifier (“UID”). “Shortly after the user locks a device . . . the decrypted class key is discarded, rendering
       all data in this class inaccessible until the user enters the passcode again or unlocks the device using Touch
       ID or Face ID.” Id. Files created in the “Protected Unless Open” class are those that need to be written even
       when the device is locked, such as an email attachment downloading in the background. Id. at 16. Such files
       are encrypted using a per-file asymmetric key, and the public key is stored with the encrypted per-file key. Id.
       When a file in this class is closed, the per-file key is wiped from memory. Id. “To open the file again, the
       shared secret is re-created using the Protected Unless Open class’s private key and the file’s ephemeral public
       key, which are used to unwrap the per-file key that is then used to decrypt the file.” Id.
       The third class is the “Protected Until First User Authentication.” Id. “This class behaves in the same way as
       Complete Protection, except that the decrypted class key isn’t removed from memory when the device is
       locked.” Id. Instead, the key is removed only on reboot. Id. “The protection in this class has similar properties
       to desktop full-volume encryption, and protects data from attacks that involve a reboot.” Id. This is the
       default class for all third-party app data not otherwise assigned to a Data Protection class.
       The final class is “No Protection,” and is protected only with the UID. Id. “Since all the keys needed to
       decrypt files in this class are stored on the device, the encryption only affords the benefit of fast remote wipe.”
       Id. However, “[i]f a file isn’t assigned a Data Protection class, it is still stored in encrypted form (as is all data
       on an iOS device).”
       In the present case, there is nothing in the record to indicate which app created the information sought by the
       State, nor under which Data Protection class the data sought falls within.



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                             Page 11 of 68
[15]   Randomly guessing the passcode (a “brute force” attack) can be automated and

       accomplished at mind-boggling speeds by modern computers. See Paul Roberts,

       Update: New 25 GPU Monster Devours Passwords in Seconds, Security Ledger (Dec.

       4, 2012, 19:12) (reporting on a password-guessing cluster of computer graphics

       cards that can guess 348 billion password hashes per second).10 But such brute

       force attacks are difficult because of the iPhone’s software security features,

       which incrementally increases the time allowed between such guesses. Apple,

       iOS Security p. 15. This eventually allows only one guess every hour, or,

       depending upon the settings of the phone, wipes the contents of the phone after

       ten incorrect guesses, making repeated guessing of the password impractical.


[16]   Thus, if the police want or need to gain access to an iPhone, the cooperation of

       its owner is practically a necessity. But if the owner of the smartphone is

       unwilling to cooperate with the police, then the police are faced with fewer

       options. One of these options has been to attempt to bypass the encryption via

       some error in the implementation of the encryption. The other has been to use

       the power of the courts to compel the owner to unlock the phone. This case

       presents the question of when the owner of the phone may refuse to cooperate

       with the police based upon her rights not to incriminate herself found in the

       U.S. Constitution.




       10
            https://securityledger.com/2012/12/new-25-gpu-monster-devours-passwords-in-seconds/



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                 Page 12 of 68
                                   IV. The Fifth Amendment and Testimony

[17]   Seo claims that the trial court’s order compelling her to unlock her phone11

       violates her right under the Fifth Amendment12 not to be a witness against

       herself. This appears to be a case of first impression in Indiana.


[18]   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. This constitutional safeguard is applicable to

       state criminal cases by way of the Fourteenth Amendment. Bleeke v. Lemmon, 6
N.E.3d 907, 925 (Ind. 2014) (citing Withrow v. Williams, 507 U.S. 680, 688–89

       (1993)). 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. In re Search Warrant




       11
         We take judicial notice that Seo’s iPhone 7 Plus is equipped with what Apple refers to as “Touch ID,” a
       biometric fingerprint sensor that can be used to unlock the phone, instead of a typed-in password. See iPhone
       7 Technical Specifications, https://www.apple.com/iphone-7/specs/ (last visited August 13, 2018); Apple,
       iOS Security p. 7. The record is unclear as to which method of security Seo chose to use. See Tr. p. 9
       (describing the phone as “locked,” but not indicating which method could be used to unlock it). However,
       the search warrant applied to either method. See Appellant’s App. p. 49 (order compelling Seo to unlock her
       phone “via biometric fingerprint, passcode, password, or otherwise[.]”).
       12
         Seo has yet to make any Fourth Amendment claim regarding the validity of the search warrant. Given the
       early procedural posture of this case, we express no opinion as to the validity of the search warrant issued by
       the trial court, as that issue has yet to be litigated in the first instance. We also note that Seo does not make
       any separate argument under the anti-self-incrimination provision of the Indiana Constitution, other than to
       mention the Indiana Constitution in her conclusion. We therefore focus our analysis solely on the Fifth
       Amendment of the Constitution of the United States. See Holloway v. State, 69 N.E.3d 924, 931 (Ind. Ct. App.
       2017) (noting that a defendant cannot invoke analysis of an issue under the Indiana Constitution without a
       separate and independent analysis of the claim), trans. denied.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                         Page 13 of 68
       Application for [redacted text], 279 F. Supp. 3d 800, 803 (N.D. Ill. 2017) (citing

       United States v. Hubbell, 530 U.S. 27, 34 (2000)).


[19]   The Fifth Amendment privilege against self-incrimination reflects our nation’s

       “fierce ‘unwillingness to subject those suspected of crime to the cruel trilemma

       of self-accusation, perjury or contempt,’ that defined the operation of . . . [Great

       Britain’s] Star Chamber, wherein suspects were forced to choose between

       revealing incriminating private thoughts or forsaking their oath by committing

       perjury.” Pennsylvania v. Muniz, 496 U.S. 582, 596 (1990) (quoting Doe v. United

       States, 487 U.S. 201, 212 (1988) (“Doe II”)). Indeed, “[t]he Fifth Amendment

       privilege against compulsory self-incrimination . . . protects ‘a private inner

       sanctum of individual feeling and thought and proscribes state intrusion to

       extract self-condemnation.’” Id. (quoting United States v. Nobles, 422 U.S. 225,

       233 (1975)).


[20]   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.13 However, in a series of cases, the Court has explored

       whether certain acts of producing documents can be testimonial for Fifth

       Amendment purposes. Importantly, these cases span more than a century and




       13
         The Court has held that there is no Fifth Amendment problem with compelling a person to do something
       that displays a physical characteristic that might be incriminating. See Hubbell, 530 U.S. at 35. Among the
       compelled physical characteristics that have been held to be non-testimonial are fingerprints. Schmerber v.
       California, 384 U.S. 757, 763–65 (1966)); United States v. Hook, 471 F.3d 766, 773–74 (7th Cir. 2006). This
       reasoning is outdated and ironic when compared with the current, heightened, “state of the art” electronic
       security provided by physical characteristics such as facial recognition and retinal scans.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                     Page 14 of 68
       contain important developments during times when the internet and

       smartphones did not exist.


[21]   In the late 1800s, the Court held in Boyd v. United States, 116 U.S. 616, 633

       (1886), that “[w]e have been unable to perceive that the seizure of a man’s

       private books and papers to be used in evidence against him is substantially

       different from compelling him to be a witness against himself.”14 In Fisher v.

       United States, 425 U.S. 391 (1976), however, the Court backed away from its

       earlier holding in Boyd, but never expressly overruled its prior holding. See

       Fisher, 425 U.S. at 407 (stating that “[s]everal of Boyd’s express or implicit

       declarations have not stood the test of time.”). Still, in Schmerber v. California,

       384 U.S. 757, 763–64 (1966), the Court cited Boyd when holding that “[i]t is

       clear that the protection of the [Fifth Amendment] privilege reaches an

       accused’s communications, whatever form they might take, and the compulsion of

       responses which are also communications, for example, compliance with a

       subpoena to produce one’s papers.” (emphasis added).


[22]   The Fisher Court proceeded to examine the question of what kinds of acts of

       production are “testimonial.” Fisher involved two consolidated cases in which

       the IRS served summonses on two attorneys, directing the attorneys to produce

       documents obtained by their clients relating to tax returns. Both attorneys

       argued inter alia that this would violate their clients’ rights against self-


       14
         See also Carpenter v. United States, 138 S. Ct. 2206, 2271 (2018) (Gorsuch, J., dissenting) (citing Richard A.
       Nagareda, Compulsion “To Be a Witness” and the Resurrection of Boyd, 74 N.Y.U.L. Rev. 1575, 1605–23 (1999);
       Rex v. Purnell, 96 Eng. Rep. 20 (K.B. 1748); Christopher Slobogin, Privacy at Risk 145 (2007)).

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                         Page 15 of 68
       incrimination. The Court held that the Fifth Amendment privilege could apply

       to situations where a defendant is compelled to produce incriminating evidence,

       and that the act of producing even unprivileged evidence can have

       communicative aspects itself and may be testimonial, entitling it to Fifth

       Amendment protection. Id. at 409–10. Nevertheless, the Court noted that the

       Government was “in no way relying on the ‘truth-telling’ of the taxpayer to

       prove the existence of or his access to the documents,” and the production of

       the documents did not authenticate the documents, because they had been

       produced by accountants and not the taxpayers being investigated themselves.

       Id. at 411.


[23]   The Court further held that, because the existence, location, and authenticity of

       the evidence sought was known to the government, the Fifth Amendment

       privilege was inapplicable because the contents of the individual’s mind was not

       used against him. See id. (“The existence and location of the papers are a

       foregone conclusion and the taxpayer adds little or nothing to the sum total of

       the Government’s information by conceding that he in fact has the papers.”).15

       Thus, the Fifth Amendment privilege did not apply to the third-party

       production of documents requested in Fisher. Id. at 414.




       15
         This is known as the “foregone conclusion” doctrine. Andrew T. Winkler, Password Protection and Self-
       Incrimination: Applying the Fifth Amendment Privilege in the Technological Era, 39 Rutgers Computer & Tech. L.J.
       194, 197 (2013). Many cases involving encryption have been decided under the foregone conclusion doctrine,
       a doctrine outstripped by technology, as discussed in more detail below.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                        Page 16 of 68
[24]   The Court in Doe II considered the legality of an order compelling the target of

       a grand jury investigation to authorize foreign banks to disclose records of his

       accounts. 487 U.S. at 202. The target of the investigation argued that

       compelling him to sign the consent form would give the government access to

       potentially incriminating records that would otherwise be unavailable to it, due

       to the fact that the District Court had no power to order foreign banks to

       produce the documents. Id. at 204. The Court rejected this argument and held

       that “an accused’s communication must itself, explicitly or implicitly, relate a

       factual assertion or disclose information.” Id. at 210.


[25]   Justice John Paul Stevens dissented, and in its acknowledgement of his dissent,

       the majority famously noted:


               We do not disagree with the dissent that “[t]he expression of the
               contents of an 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 “be[ing] forced to
               surrender a key to a strongbox containing incriminating documents”
               than it is like “be[ing] compelled to reveal the combination to
               [petitioner’s] wall safe.”


       Id. at 210 n.9 (quoting id. at 219 n.1 (Stevens. J., dissenting) (emphasis added).


[26]   Twelve years later, but before the advent of smartphones and a robust internet,

       the Supreme Court again revisited this issue in United States v. Hubbell, 530 U.S.
27 (2000), a case that arose out of the Whitewater investigation. The target in

       that case, Webster Hubbell, had pleaded guilty to charges of mail fraud and tax
       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 17 of 68
       evasion arising out of his billing practices. Id. at 30. In the plea agreement,

       Hubbell promised to provide the Independent Counsel with “full, complete,

       accurate, and truthful information” about matters relating to the Whitewater

       investigation. Id.


[27]   Later, while Hubbell was serving his twenty-one-month prison sentence, a

       grand jury issued a subpoena duces tecum demanding the production of eleven

       categories of documents. Id. at 31. Hubbell invoked his Fifth Amendment

       privilege. Id. The Independent Counsel then produced an order from the

       District Court directing Hubbell to comply with the subpoena and granting him

       immunity against the government’s use and derivative use of the compelled

       testimony. Id. Hubbell then delivered the specified documents and yet was

       subsequently indicted again for various wire fraud, mail fraud, and tax crimes.

       Id. The District Court dismissed this new indictment based on the violation of

       the immunity previously granted. Id. at 32. The United States Court of Appeals

       for the District of Columbia Circuit reversed and remanded, and the Supreme

       Court granted certiorari.


[28]   The Supreme Court, citing Fisher, reiterated that “a person may be required to

       produce specific documents even though they contain incriminating assertions

       of fact or belief because the creation of those documents was not ‘compelled’

       within the meaning of the privilege.” Id. at 35–36. Accordingly, the simple fact

       that the documents contained incriminating evidence did not mean that

       Hubbell could avoid complying with the subpoena. Id. at 36.



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 18 of 68
[29]   Importantly, however, the Court made it clear that the very act of producing

       documents in response to a subpoena may have a compelled testimonial aspect

       in and of itself. Id. “The ‘compelled testimony’ that is relevant . . . is not to be

       found in the contents of the documents produced in response to the subpoena. It

       is, rather, the testimony inherent in the act of producing those documents.” Id. at 40

       (emphasis added).


[30]   In discussing the government’s subpoena, which had required the defendant to

       provide numerous responses to very broad requests, the Court stated that “[t]he

       assembly of those documents was like telling an inquisitor the combination to a

       wall safe, not like being forced to surrender the key to a strongbox.” Id. at 43.

       The Court then held that the “foregone conclusion” rationale did not apply to

       overcome the testimonial aspects of Hubbell’s production of documents because

       the government could not identify the files, describe what they were, tell

       whether they existed, or whether Hubbell had knowledge of, possession of, or

       access to them. See id. at 45 (“here the Government has not shown that it had

       any prior knowledge of either the existence or the whereabouts of the 13,120

       pages of documents ultimately produced by respondent.”). Only Hubbell’s

       responses had provided the government with this information. See id. at 43 (“It

       was unquestionably necessary for respondent to make extensive use of ‘the

       contents of his own mind’ in identifying the hundreds of documents responsive

       to the requests in the subpoena.”). The Court concluded that the Fifth

       Amendment privilege did apply and that the grant of immunity extended to the




       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018      Page 19 of 68
       use and derivative use of the testimonial aspects of the production of those

       documents. Id.


[31]   We acknowledge that the United States Supreme Court has backtracked from

       its earlier pronouncements that the protections afforded by the Fifth

       Amendment, in addition to the Fourth Amendment, implicated privacy

       concerns. Indeed, the Fisher Court noted that although it had “often stated that

       one of the several purposes served by the constitutional privilege against

       compelled testimonial self-incrimination is that of protecting personal privacy,”

       it then held that “[w]e cannot cut the Fifth Amendment completely loose from

       the moorings of its language, and make it serve as a general protector of

       privacy—a word not mentioned in its text and a concept directly addressed in

       the Fourth Amendment. We adhere to the view that the Fifth Amendment

       protects against compelled self-incrimination, not [the disclosure] of private

       information.” 425 U.S. at 399–401; see also United States v. Doe, 465 U.S. 605,

       618 (1984) (“Doe I”) (O’Connor, J., concurring) (“The notion that the Fifth

       Amendment protects the privacy of papers originated in Boyd [], but our

       decision in Fisher [], sounded the death-knell for Boyd.”).


[32]   Still, courts continue to acknowledge that the Fifth Amendment’s anti-self-

       incrimination provision “protect[s] privacy in the sense of confidentiality.” See

       Willan v. Columbia Cty., 280 F.3d 1160, 1163 (7th Cir. 2002). Thus, while we do

       not consider the Fifth Amendment as a “general protector of privacy,” we

       cannot ignore the privacy/confidentiality implications that compelled

       revelation of a smartphone passcode would inevitably have based on the

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 20 of 68
       extraordinary quantitative and qualitative differences between the amount of

       digital information stored on a smartphone compared to traditional paper-

       based media. See Section VI, infra. We believe that legal analysis of digital

       information storage must change, and soon, in order to be relevant and

       credible. See Section VI and Section VIII, infra.


                                  V. The Testimonial Nature of a Passcode

[33]   Under current, paper-based legal analysis, Seo argues that her passcode is

       testimonial in nature, and that compelling her to reveal it, or compelling her to

       unlock the phone using the passcode, would be a testimonial act that she cannot

       be compelled to do without violating her Fifth Amendment privilege.

       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.


[34]   The State contends that the Fifth Amendment is not implicated by the trial

       court’s order because it does not compel Seo to reveal the password to the State;

       it simply requires her to unlock the phone using her password (or other method)

       and disable the password feature so that the State may continue to access it.
       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 21 of 68
       Accordingly, the State argues, Seo need not reveal the password, and therefore

       the “contents of her mind,” to the State at all. Therefore, according to the

       State’s argument, the foregone conclusion doctrine from Fisher controls.


[35]   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; see also United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010)

       (holding that the government could not compel the defendant to reveal his

       password because this amounted to “testimony” from him which would

       “requir[e] him to divulge through his mental processes his password.”); Kiok,

       supra at 76 (“Because a password comes from a defendant’s mind, its revelation

       is testimonial.”).


[36]   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.


[37]   Moreover, some courts appear to have rejected the State’s attempt to

       distinguish between compelling a defendant to reveal the passcode versus


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 22 of 68
       merely compelling the defendant to unlock the phone herself and give the State

       access to the unlocked phone. As summarized by one commentator:


                But what about forcing you to enter a password? Is this a
                compellable physical act? Three courts have answered no. In
                their view, forcing a person to use a password to decrypt a hard
                drive is not a physical act because it forces the person to use the
                contents of his mind. Also prevalent in these courts’ reasoning is
                the key-combination dicta already discussed: “A password, like a
                combination, is in the suspect’s mind, and is therefore testimonial
                . . . .”


       Dan Terzian, The Micro-Hornbook on The Fifth Amendment and Encryption, 104

       Geo. L. J. Online 168, 171–72 (2016).


[38]   The three cases Terzian refers to are: In re Grand Jury Subpoena Duces Tecum

       Dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012), which held that

       “the decryption and production of the hard drives would require the use of the

       contents of Doe’s mind and could not be fairly characterized as a physical act

       that would be nontestimonial in nature.”; In re Boucher, 2007 WL 4246473, at

       *3 (D. Vt. Nov. 29, 2007),16 which held that entering a password into a

       computer implicitly communicates facts and was therefore testimonial in

       nature; and Commonwealth v. Baust, 89 Va. Cir. 267 (2014), which held that

       compelling defendant to provide access to his locked phone through his




       16
         The initial decision in Boucher was issued by the District Court Magistrate, whose decision was overturned
       by the District Court Judge in the subsequent decision. But the subsequent decision was based on the
       “foregone conclusion” doctrine. See In re Boucher, 2009 WL 424718 at *3 (D. Vt. Feb. 19, 2009) (citing Fisher,
425 U.S. at 411).

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                       Page 23 of 68
       passcode was testimonial. See also Kiok, supra at 76 (“an order to compel

       decryption [i.e., unlocking a smartphone] compels a testimonial act.”); Andrew

       T. Winkler, Password Protection and Self-Incrimination: Applying the Fifth

       Amendment Privilege in The Technological Era, 39 Rutgers Computer & Tech. L.J.

       194, 209 (2013) (“Entering a password or otherwise decrypting the contents on

       a computer is a testimonial act that receives the full protection of the Fifth

       Amendment.”).17


[39]   Upon consideration of this authority, and because we believe that electronic

       data and the devices that contain it are fundamentally different than paper

       documents and paper storage, we reject the State’s attempt to distinguish

       between compelling Seo to convey her passcode to the State and compelling

       Seo to simply unlock her phone by entering the passcode itself. It is a distinction




       17
          Interestingly, some courts have made a distinction between compelling a person to unlock a phone using a
       password and compelling a person to unlock a phone using a fingerprint. As noted above, the Supreme Court
       has held that forcing someone to submit to the taking of fingerprints is not testimonial. Schmerber, 384 U.S. at
       764; see also Hook, 471 F.3d at 773–74. Because of this, at least two courts have held that there is no Fifth
       Amendment problem with compelling a defendant to produce a fingerprint to unlock a smartphone. Baust, 89
       Va. Cir. 267, at *4; State v. Diamond, 905 N.W.2d 870, 878 (Minn. 2018). As noted, supra, it is the height of
       irony that the most secure current forms of electronic identification, the fingerprint, and more recently, facial
       recognition or retinal scans, currently have no protection against compulsory use by law enforcement
       authorities under Schmerber et al. This difference is reflective of legal thinking from a paper-based world that
       courts currently are called upon to stretch to fit a world of electronic data about everything and everyone.
       Our courts need a new paradigm that reflects our modern world.
       However, even the fingerprint-unlocking function of the iPhone 7 at issue here will become inoperative after
       forty-eight hours, thereby requiring the use of a passcode. See Terzian, 104 Geo. L. J. Online at 169 (citing
       Apple, About Touch ID Advanced Security Technology (Sept. 11, 2017) (noting that a fingerprint alone is
       insufficient to unlock an iPhone when “more than 48 hours have elapsed from the last time” the phone was
       unlocked). Here, it has been well more than forty-eight hours since Seo’s phone has been unlocked by the
       fingerprint sensor. Thus, even though the State might be able to compel Seo to attempt to use her fingerprint
       to unlock the phone, this would, in all likelihood, be unsuccessful.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                         Page 24 of 68
       without a difference because the end result is the same: the State is compelling

       Seo to divulge the contents of her mind to obtain incriminating evidence.


[40]   Furthermore, we 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. We also consider it

       testimonial because her act of unlocking, and thereby decrypting, her phone

       effectively recreates the files sought by the State. As discussed above, when the

       contents of a phone, or any other storage device, are encrypted, the cyphertext

       is unintelligible, indistinguishable from random noise. In a very real sense, the

       files do not exist on the phone in any meaningful way until the passcode is

       entered and the files sought are decrypted. Thus, compelling Seo to unlock her

       phone goes far beyond the mere production of paper documents at issue in

       Fisher, Doe, or Hubbell. Because compelling Seo to unlock her phone compels

       her to literally recreate the information the State is seeking, we consider this re-

       creation of digital information to be more testimonial in nature than the mere

       production of paper documents.


[41]   Stripping legal precedent away from the issue, the very nature of a passcode

       supports the conclusion that it is the product of one’s mind. Many people

       choose a passcode that is uniquely memorable to them in some way. Often, the

       password is an important date or other bit of information they hope will not be

       easily guessed, but that is still uniquely memorable to them. To force Seo to

       reveal her passcode is the very definition of compelling her to reveal the



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 25 of 68
       contents of her mind. Accordingly, we hold that compelling Seo to unlock her

       phone in any manner is testimonial.18


                                   VI. The “Foregone Conclusion” Doctrine

[42]   The State and the dissent argue that compelling Seo to unlock her phone is not

       a violation of the Fifth Amendment privilege because of the “foregone

       conclusion” doctrine. “Even if a response is testimonial, the privilege does not

       apply where the testimonial portion is a foregone conclusion.” Dan Terzian,

       Forced Decryption as a Foregone Conclusion, 6 Cal. L. Rev. Cir. 27, 28 (May 2015).

       Under the “foregone conclusion” doctrine:


                the Fifth Amendment does not protect an act of production when
                any potentially testimonial component of the act of production—
                such as the existence, custody, and authenticity of evidence—is a
                “foregone conclusion” that “adds little or nothing to the sum
                total of the Government’s information.” [Fisher, 425 U.S. at 411].
                For the rule to apply, the Government must be able to “describe
                with reasonable particularity” the documents or evidence it seeks
                to compel. [Hubbell, 530 U.S. at 30].


       United States v. Apple MacPro Computer, 851 F.3d 238, 247 (3d Cir. 2017); see also

       Kerr & Schneier, supra at 1002 (“The foregone conclusion doctrine teaches that,



       18
          For the Fifth Amendment privilege to apply, the testimony at issue must also be incriminating. Bleeke, 6
N.E.3d at 925 (citing Hiibel, 542 U.S. at 190). Here, neither party disputes that the information the State seeks
       from Seo’s iPhone would be incriminating. Moreover, given the vast amounts of personal information
       located on a typical smartphone, there should be a reasonable presumption that something incriminating
       would be discovered during review of the contents of almost anyone’s smartphone. Consider the expansive
       law enforcement claims that could be made under the plain view doctrine or the good faith exception to the
       Fourth Amendment or Article 1 Section 11 of the Constitution of Indiana protections when searching a
       smartphone. See note 26, infra.



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                         Page 26 of 68
       if the testimonial aspect of production is already known to the government and

       is not to be proven by the testimonial act, then the testimony is a foregone

       conclusion and the Fifth Amendment privilege does not apply.”).19


[43]   “Although the State need not have ‘perfect knowledge’ of the requested

       evidence,” for the foregone conclusion rationale to apply, “it ‘must know, and

       not merely infer,’ that the evidence exists, is under the control of defendant, and

       is authentic.” State v. Stahl, 206 So. 3d 124, 135–36 (Fla. Dist. Ct. App. 2016)

       (citing United States v. Greenfield, 831 F.3d 106, 116 (2d Cir. 2016)) (emphasis

       removed). Thus, where the foregone conclusion rationale applies, the question

       is not of testimony, but of surrender. Id. at 136 (citing Fisher, 425 U.S. at 411).


[44]   In this sense, the foregone conclusion doctrine of Fifth Amendment

       jurisprudence contains its own requirement of specificity regarding the

       information sought from the defendant, i.e., that the State or government be

       able to describe with reasonable particularity the documents or evidence it seeks

       to compel. Very importantly, this particularity requirement prevents the

       foregone conclusion exception from swallowing the rule by requiring that the

       State already know the documents or evidence it seeks. So long as the State

       already knows with reasonable particularity the documents or evidence it seeks,

       the surrender of the evidence “adds little or nothing to the sum total of the



       19
         There appears to be some confusion as to whether the foregone conclusion rationale is a true exception to
       the Fifth Amendment privilege as it applies to testimonial production of documents, or whether the foregone
       conclusion rationale means that the production of the documents at issue is simply not testimonial. Either
       way, however, if the foregone conclusion doctrine is applicable, under current precedent, there is no Fifth
       Amendment protection.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                    Page 27 of 68
       Government’s information.” Fisher, 425 U.S. at 411. In contrast, where the

       State does not already know the evidence exists, it cannot describe with

       reasonable particularity the evidence it seeks, and the foregone conclusion

       exception will not apply.


[45]   The State argues that the foregone conclusion should apply under the facts of

       the present case. The State focuses its argument not on the contents of the phone,

       but on the passcode itself. Specifically, the State claims, “the act of unlocking a

       cell phone contains only one implied fact: the person knows the password to the

       phone, which by inference says that the person has control over and possession

       of the phone.” Appellee’s Br. at 19. The State therefore contends that the

       foregone conclusion rationale should apply because “a person must know her

       passcode to use her own phone, the testimony implicit in the act of unlocking the

       phone is a foregone conclusion when the State has proven that the phone

       belongs to her.” Id. at 22 (emphasis added).


[46]   There is some support for the State’s position. Indeed, it is one of the two paths

       of legal analysis using a paper-based analogy. For example, in State v. Stahl, the

       court held that, in deciding whether providing a passcode to a locked phone fell

       within the ambit of the foregone conclusion doctrine, “the relevant question is

       whether the State has established that it knows with reasonable particularity

       that the passcode exists, is within the accused’s possession or control, and is

       authentic.” 206 So. 3d at 136 (emphasis added); see United States v. Spencer, ___

       F.Supp.3d ___, 2018 WL 1964588 at *3 (N.D. Cal. April 26, 2018) (holding

       that, to determine whether the foregone conclusion doctrine applied, the

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 28 of 68
       appropriate question was whether the government could show that it was a

       foregone conclusion that the defendant could decrypt the devices);

       Commonwealth v. Davis, 176 A.3d 869, 876 (Pa. Super. Ct. 2017) (holding that

       the foregone conclusion doctrine applied where the state was able to show that

       it knew that the passcode existed, it was within the defendant’s possession or

       control, and was authentic); Commonwealth v. Gelfgatt, 11 N.E.3d 605, 615

       (Mass. 2014) (concluding that the “factual statements that would be conveyed

       by the defendant’s act of entering an encryption key in[to] the computers [were]

       ‘foregone conclusions[.]’”); United States v. Fricosu, 841 F. Supp. 2d 1232, 1236–

       37 (D. Colo. 2012) (holding that the foregone conclusion doctrine applied

       where the State had evidence proving the encrypted computer belonged to the

       defendant and that she knew the password).


[47]   However, Seo argues the other path of the paper-based legal analogy: the

       foregone conclusion doctrine does not apply here because the State cannot

       describe with reasonable particularity the digital files or evidence it seeks to

       compel her to produce. That is, Seo argues that the focus of the foregone

       conclusion analysis is not whether it is a foregone conclusion that Seo knows

       her own passcode; rather, the focus should be on whether the State can describe

       with reasonable particularity the digital information it seeks to compel her to

       produce. See Apple MacPro Computer, 851 F.3d at 247 (citing Hubbell, 530 U.S. at

       30). And there is support for Seo’s framing and application of the foregone

       conclusion doctrine in other jurisdictions that have considered her argument.




       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 29 of 68
[48]   In Commonwealth v. Baust, the court held that the password itself was not a

       foregone conclusion because it was not known outside of the defendant’s mind.

       89 Va. Cir. 267 at *4. Presaging Seo’s argument here, the Baust court held that,

       “[u]nlike a document or tangible thing, such as an unencrypted copy of the

       footage itself, if the password was a foregone conclusion, the Commonwealth

       would not need to compel Defendant to produce it because they would already

       know it.” Id.; see also In re Grand Jury Subpoena Duces Tecum Dated March 25,

       2011, 670 F.3d at 1347 (holding that the foregone conclusion doctrine was

       inapplicable where the government had not shown that it possessed knowledge

       as to the “files on the [encrypted] hard drives at the time it attempted to compel

       production.”); Sec. & Exch. Comm’n v. Huang, 2015 WL 5611644, at *4 (E.D. Pa.

       Sept. 23, 2015) (holding that the foregone conclusion doctrine did not apply

       because the SEC had no evidence any digital files it sought were actually

       located on the target’s work-issued smartphones).


[49]   With an eye toward a more comprehensive rethinking of the legal analysis

       regarding digital information and storage, we believe these cases express the

       better rationale.20 What is being compelled here is not merely the passcode. As

       described above, compelling Seo to enter her password forces her to effectively

       re-create the entire contents of her phone. In the words of the Third Circuit




       20
         This is one of the two available rationales under the outdated paper paradigm that our courts are stumbling
       through in an effort to resolve information production disputes regarding electronic data on electronic
       devices. Judge May in her dissent chooses the opposite alternative. We believe the alternative branch of cases
       we have chosen contains the better rationale because it not only resolves the instant issue and case; it also
       presages a suggested way forward in this important and continually evolving area.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                      Page 30 of 68
       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). Here, what the State seeks to compel is

       not merely the password, but the entire contents of Seo’s iPhone. 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.


[50]   To be sure, the investigating detective has already viewed Seo’s phone and has

       seen information that caused him to believe that D.S. was the victim of stalking

       and harassment by Seo. Indeed, Detective Inglis testified that he made a

       “forensic download” of the contents of Seo’s phone. Tr. p. 6. We may therefore

       presume that the State already has much of the information contained on Seo’s

       phone.21 But it is not this information the State now seeks to compel. Instead,

       what the State seeks now is evidence that might have been created on Seo’s




       21
          We also note that the information the State seeks is not of an emergency nature, or of a completely new
       description or character from that information it already has. The State could potentially prove its case
       entirely from the text messages received by D.S. and that may still be found on his cellphone, comparing the
       alleged threats and harassment language after the protective order was issued to the threatening and harassing
       texts contained in its forensic download of Seo’s cellphone with her consent. The State has also not shown
       that it has tried unsuccessfully to obtain the desired information through readily available and far less
       constitutionally intrusive methods, such as third-party subpoenas to Seo’s cell carrier regarding the texts at
       issue or to Apple to inquire as to what applications she has downloaded, with an eye toward those apps or
       services that could mask her cellphone number. A subpoena to Google could also reveal any Google Voice
       numbers Seo has secured, and the State could compare those numbers to the sources of the texts to D.S.



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                      Page 31 of 68
       phone after this forensic download, i.e., evidence that Seo sent the flood of

       threatening and harassing messages to D.S. But again, the State has not

       described with any particularity the digital information it seeks to access.


[51]   We acknowledge that the State secured a search warrant for the contents of

       Seo's iPhone. However, this warrant did not describe with any reasonable

       particularity the digital information the State sought to find, as the Fifth

       Amendment requires.22 Instead, the warrant merely stated that the police were:


                authorized and ordered in the name of the State of Indiana, with
                necessary and proper assistance, in the daytime or nighttime, to
                search the property located at and described as:

                5. for purpose of searching items described in the sworn
                evidence, to wit:

                     That Katelin Eunjoo Seo be compelled to unlock (via
                     biometric fingerprint, passcode, password, or otherwise) the I
                     Phone [sic] 7 plus with serial number ************ and
                     cellular phone number ******* pursuant to Indiana Code 35-
                     33-5-11(a) and that if she fails to comply with this order, that
                     she shall be subject to the contempt powers of the court.




       22
          We decline to address whether the issuance of a search warrant is sufficient to meet the State’s burden
       under the foregone conclusion doctrine to describe with reasonable particularity the digital files or evidence it
       seeks to compel. The Fourth Amendment requirement for probable cause requires only that the magistrate
       issuing the warrant make a “practical, common-sense decision whether, given all the circumstances set forth
       in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular
       place.” State v. Spillers, 847 N.E.2d 949, 952–53 (Ind. 2006). This appears to us to be a lower standard than
       that required for the foregone conclusion doctrine to apply, i.e., that the government be able to describe with
       “reasonable particularity” the documents or evidence it seeks to compel. Hubbell, 530 U.S. at 44–45.
       Moreover, here, there has yet to be a challenge to the propriety of the warrant. Indeed, such a challenge
       would likely come only after the State has searched the phone, discovered incriminating evidence, if any, and
       attempts to use that evidence at trial.



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                          Page 32 of 68
       Appellant’s App. p. 49.


[52]   Thus, the warrant itself does not describe with any particularity the digital

       information the State seeks to compel Seo to produce or the evidence the State

       is authorized to search for.23 Nor does the trial court’s order on contempt

       describe with any reasonable particularity the digital information the State seeks

       to compel.24


[53]   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




       23
         This observation is not a comment on the propriety of the search warrant for purposes of the Fourth
       Amendment or Article 1, Section 11 of the Indiana Constitution. We merely hold that for purposes of
       applying the foregone conclusion doctrine under the Fifth Amendment, the State has not described with
       reasonable particularity the digital files or data it seeks to compel.
       24
          The dissent contends that, based on Detective Inglis’s testimony at the hearing on the State’s motion to
       hold Seo in contempt, “it seems self-evident the State is seeking evidence on Seo’s phone of an App or
       multiple Apps that would allow her to mask her identity and evidence that Seo’s phone had generated the
       phone calls and texts that D.S. received from phone numbers that did not belong to any other person.” Slip
       op. at 65 n.8. But by the time Detective Inglis testified, the State had already obtained a warrant compelling
       Seo to unlock her phone. And there is nothing in the language of the warrant itself that describes with any
       particularity the information the State was authorized to look for. Although the dissent faults Seo for failing
       to present us with a more complete record, it is the language of the warrant itself, not the probable cause
       affidavit or testimony supporting the warrant, that is the controlling legal document which compels Seo to
       unlock her phone. And even after Detective Inglis’s testimony, the order holding Seo in contempt again does
       not describe with any particularity the information the State seeks to compel.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                        Page 33 of 68
       name, rather than allowing the State to view everything that is contained in the

       messaging applications involved. These are not onerous requirements.


[54]   Accordingly, we conclude that the State has not met the requirements of the

       foregone conclusion doctrine because it has not demonstrated that it can, with

       reasonable particularity, identify any files or describe where they are. See

       Hubbell, 530 U.S. at 45; In re Grand Jury Subpoena Duces Tecum Dated March 25,

       2011, 670 F.3d at 1347; Sec. & Exch. Comm’n, 2015 WL 5611644 at *4. Instead,

       here, all the State has demonstrated is that evidence relating to the harassment

       and intimidation charges is probably on the phone. But it has failed to describe

       with adequate reasonable particularity the files or evidence it seeks on Seo’s

       smartphone.


[55]   It bears repeating that writs of assistance were the immediate evils that

       motivated the framing and adoption of the Fourth Amendment. Payton v. New

       York, 445 U.S. 573, 583 (1980). Although this case does not directly involve the

       Fourth Amendment, in criminal cases raising the Fifth Amendment, the law

       requires the State to describe the information it seeks to compel production of

       with reasonable particularity.

[56]   Even in civil cases, modern, electronic discovery standards require that the

       requesting party specifically tailor its request to discover relevant information.




       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 34 of 68
       See Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 322 (S.D.N.Y. 2003).25 And

       in civil cases, opponents are also required to detail and attempt to obtain the

       information sought from third-party sources before seeking to compel the

       opponent to produce the information directly. The same should be true in

       criminal cases as well. Only then is an assault on Fifth Amendment privilege

       against self-incrimination a reasonable option under the law.


[57]   As noted above, the Fifth Amendment privilege against self-incrimination

       reflects our nation’s fundamental principles. These principles should not be

       altered by the advance of technology. To the contrary, they must be applied

       consistently and with recognition of the technology that has replaced physical

       papers, files, boxes and safes. Cf. Carpenter v. United States, 138 S. Ct. 2206, 2222

       (2018) (“When confronting new concerns wrought by digital technology, this

       Court has been careful not to uncritically extend existing precedents.”); Collins

       v. Virginia, 138 S. Ct. 1663, 1671 (2018) (declining to expand the automobile

       exception to the warrant requirement to include a search of a vehicle parked in

       the curtilage of a home because to do so would “undervalue the core Fourth

       Amendment protection afforded to the home and its curtilage and ‘untether’ the

       automobile exception ‘from the justifications underlying’ it.”) (quoting Riley v.

       California, 573 U.S. ___, 134 S. Ct. 2473, 2485 (2014)). Indeed, these principles




       25
          In civil cases involving requests for discovery of electronic information, courts have applied a multi-factor
       test that includes consideration of the extent to which the request is specifically tailored to discover relevant
       information and the availability of such information from other sources. Zubulake, 217 F.R.D. at 322.
       Certainly, such concerns are all the more pressing in criminal cases where the State seeks production of
       digital information that may incriminate the defendant or others.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                          Page 35 of 68
       are all the more important given the amount and potentially incriminating

       nature of information contained in a smartphone.


                                              VII. Outdated Analogies

[58]   Advances in technology have rendered paper-based analogies more and more

       inapt, if not wholly inadequate. See Kiok, supra at 76 (“Many analogies to older

       technology simply do not replicate how electronic encryption actually works.

       Although metaphors are useful in analogizing new technology to older, more

       familiar one[s], if the metaphor is stretched too far, it loses its usefulness to

       courts and commentators.”). Thus, to compare a smartphone and its contents

       to a paper file located in a locked file cabinet or wall safe, as the current case

       law does, is at the very least, a gross oversimplification. The information stored

       on a smartphone is qualitatively and quantitatively unique.


[59]   As indicated in our introduction, the sheer quantity of personal information

       contained on a typical smartphone is truly astounding. In the years that the

       paper-based analogies were first made, it would have taken thousands, if not

       millions, of sheets of paper and photographs to equal the amount of digital

       information, such as email, text messages, photographs, and videos, stored in a

       modern smartphone.


[60]   As recently as 2000, “only” 80 billion consumer photos were taken annually.

       Since the advent of the smartphone, this number has grown at an astonishing

       rate: by 2010, the number of photos taken annually had nearly tripled to over

       200 billion, with projections that 1.3 trillion photos would be taken by 2017, and


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 36 of 68
       over 79% of these photos were taken with some kind of phone. See Stephen

       Heyman, Photos, Photos Everywhere, N.Y. Times, July 29, 2015.26 These

       predictions were pretty accurate, as it was reported that 1.2 trillion photos were

       taken in 2017, 85% taken with smartphones. See Caroline Cakebread, People will

       take 1.2 trillion digital photos this year — thanks to smartphones, Business Insider,

       Aug. 31, 2017.27 A 2015 study revealed that the average smartphone user takes

       150 photos per month and has 630 photos stored on the phone. See Janko

       Roettgers, Special report: How we really use our camera phones, GigaOm (Jan. 23,

       2015, 5:00 a.m. CDT).28 These numbers can only have grown since then with

       the increased storage capacity of more recent smartphones.


[61]   Text messaging presents a similar story. A 2011 study by the Pew Research

       Center showed that users sent or received an average of 41.5 messages per day.

       See Aaron Smith, How Americans Use Text Messaging, Pew Research Center

       (Sept. 19, 2011).29 This number has certainly only grown. Indeed, one report

       indicated that between 2011 and 2014, global text message usage grew by

       140%. Kenneth Burke, How Many Texts Do People Send Every Day?, Text Request

       (May 18, 2016).30 This same report indicates that globally 18.7 billion text




       26
            Available at https://www.nytimes.com/2015/07/23/arts/international/photos-photos-everywhere.html
       27
         http://www.businessinsider.com/12-trillion-photos-to-be-taken-in-2017-thanks-to-smartphones-chart-
       2017-8
       28
            https://gigaom.com/2015/01/23/personal-photos-videos-user-generated-content-statistics/
       29
            Available at http://www.pewinternet.org/2011/09/19/how-americans-use-text-messaging/
       30
            https://www.textrequest.com/blog/how-many-texts-people-send-per-day/


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                     Page 37 of 68
       messages were sent every day. Id. And these statistics do not include two of the

       most widely used app-to-app messaging platforms, WhatsApp and Facebook

       Messenger, which then combined for 60 billion messages per day. Id. Apple’s

       Messages app sent over 40 billion notifications per day in 2016 and peaked at

       200,000 messages per second. See Kif Leswing, Apple says people send as many as

       200,000 iMessages per second, Business Insider, Feb. 13, 2016 (citing an interview

       of Apple Services Vice President Eddy Cue).31


[62]   The point of these statistics is not to overwhelm the reader with numbers, but

       simply to illustrate how different a smartphone is from traditional paper-based

       media. To compare a smartphone to a locked strongbox or a wall safe, as the

       currently existing case law does, stretches these analogies beyond the breaking

       point. Perhaps a more apt analogy would be to compare a smartphone to a

       literal warehouse containing thousands of personal photographs, millions of

       lines of text contained in emails, messages, personal conversations, medical

       information, and other items of the most intimate nature. Some commentators

       have even compared a smartphone to a “second brain” or “an extension of the

       mind.” See Yo Zushi, Life with a smartphone is like having a second brain in your




       31
        http://www.businessinsider.com/eddy-cue-200k-imessages-per-second-2016-2 (citing The Talk Show,
       Daring Fireball (Feb. 12, 2016), https://daringfireball.net/thetalkshow/2016/02/12/ep-146



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018               Page 38 of 68
       pocket, New Statesman (Feb. 22, 2017);32 Karina Vold, Is Your Smartphone an

       Extension of Your Mind?, Motherboard (Mar. 2, 2018, 10:00 a.m.).33


[63]   The paper-based analogies are also less and less apt as technology advances. In

       the days of the floppy disk, it was understandable to compare a digital file

       stored on such a disk to a physical piece of paper stored in a filing cabinet.

       Indeed, the basis of the most computer user interfaces retains the “desktop

       metaphor” of files, folders, and trash cans and recycling bins. But the advent of

       readily available, reliable, fast, and easy-to-use encryption has changed this

       metaphor. As noted above, encryption takes existing information and obscures

       it in such a manner that it is unreadable and unrecoverable unless it is decrypted

       with the proper key. To use the wall-safe metaphor, with encryption, when one

       locks the safe with the combination, the letter inside is shredded into millions of

       tiny pieces that no person could ever hope to reassemble; yet when one reenters

       the combination and unlocks the safe, the pieces of the letter almost magically

       reassemble themselves to reconstitute the letter.


[64]   Despite the weaknesses of the current paper-based metaphors, the controlling

       Fifth Amendment case law still uses these metaphors. And we are not at liberty

       to create our own analogies or frameworks when it comes to the federal

       Constitution. This is a task reserved for the High Court itself. Thus, as we have

       explained, we believe that compelling an individual to unlock her smartphone



       32
            https://www.newstatesman.com/science-tech/2017/02/life-smartphone-having-second-brain-your-pocket
       33
            https://motherboard.vice.com/en_us/article/qvemgb/is-your-smartphone-an-extension-of-your-mind


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                Page 39 of 68
       by passcode is a testimonial act more akin to unlocking a wall safe than

       handing over the key to a locked strongbox.


                                                 VIII: A Way Forward?

[65]   Electronic data storage of any type has stretched paper-based rules, rubrics, and

       rationales beyond their breaking points. As the Fisher court observed about the

       ruling in Boyd ninety years earlier, today, many paper-based rules, rubrics and

       rationales have not stood the test of time, especially as time is accelerated by

       developments in technology.34 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.35 Going forward,

       we ask reviewing courts of last resort to consider the following structure for

       resolving decryption requests from law enforcement authorities:




       34
          In 1965, American computer engineer Gordon Moore predicted that the number of transistors in a silicon
       chip would double every year. He later revised this prediction to a doubling of transistors every two years, but
       in reality, the pace has been a doubling every eighteen months. See Moore’s Law, Encyclopædia Britannica
       (Nov. 29, 2017), available at https://www.britannica.com/technology/Moores-law. However, the laws of
       both physics and economics have recently brought the continuing validity of Moore’s prediction into
       question. See Tom Simonite, Moore’s Law is Dead. Now What?, MIT Technology Review (May 13, 2016),
       https://www.technologyreview.com/s/601441/moores-law-is-dead-now-what/; End of Moore’s Law: It’s Not
       Just About Physics, Scientific American (last visited Aug. 13, 2018),
       https://www.scientificamerican.com/article/end-of-moores-law-its-not-just-about-physics/.
       35
          We must keep in mind that the Federalist Framers were forced to include a Bill of Rights, including the
       Fourth and Fifth Amendments, by their opponents, the Anti-Federalists, in the state ratification conventions.
       See United States v. Emerson, 270 F.3d 203, 237 (5th Cir. 2001) (noting that the Anti-Federalists wanted the
       United States Constitution, like most of the state Constitutions, to contain a Bill of Rights to prevent the
       federal government from infringing upon the fundamental rights of the people). Without the clear recognition
       of these personal rights, the United States, as we know it, would never have existed.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                        Page 40 of 68
     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.36


     5. Exceptions to the Fourth Amendment and its state analogues, such as

         the plain view doctrine and the good faith exception, should be



36
   Defendants in criminal cases are entitled to at least the same rights in this regard as are parties in civil
cases. See Zubulake, 217 F.R.D. at 322.



Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                            Page 41 of 68
                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. 37


                                                     Conclusion
[66]   Courts will continue to be faced with issues involving the intersection of the law

       and rapidly-emerging technology. Technology moves faster than the law. See,

       e.g., People v. Kramer, 706 N.E.2d 731, 734 (N.Y. 1998). But the principles

       embodied in the Bill of Rights by our Founding Fathers are timeless. See id.

       (“[Technology] cannot be allowed to outpace the array of checks and balances

       and protections affecting [] privacy intrusions, important to individuals and

       society at large[.]”).


[67]   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



       37
         See Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 Colum. L. Rev. 279, 314 (Jan. 2005)
       (suggesting that the plain view doctrine be abolished in computer searches because “computers often must be
       searched comprehensively to locate the evidence sought,” and “the plain view rule threatens to collapse the
       distinction between particular and general warrants. A particular warrant in theory may become a general
       warrant in practice, as all of the evidence in the computer may come into plain view during the course of the
       forensic analysis.”); Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 576 (Apr.
       2005) (“[A] tightening of the plain view doctrine may be necessary to ensure that computer warrants that are
       narrow in theory do not become broad in practice.”); see also Orin S. Kerr, Executing Warrants for Digital
       Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 1, 21 (2015) (revisiting the
       author’s earlier conclusions and suggesting that “[t]he plain view doctrine might not be the problem, and
       eliminating the plain view exception might not be the answer,” and arguing that the use of non-responsive
       data found during a search instead renders the seizure unreasonable).



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                         Page 42 of 68
       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.38

[68]   Reversed and remanded.


       Riley, J., concurs in result.


       May, J., dissents with opinion.




       38
          As noted above, our opinion today does not foreclose the possibility of the State continuing the
       prosecution of Seo. See note 21, supra. Furthermore, the State may have other means of discovering the
       contents of Seo’s phone. Although the contents of the phone itself are encrypted, some of the information
       might still be in the possession of third parties, such as the manufacturer of the phone (Apple, as to cellphone-
       number-spoofing apps downloaded by Seo) or her service provider (such as AT&T, Verizon, T-Mobile,
       Sprint, etc., as to when text messages were sent). And at least one manufacturer sells a turn-key solution that
       claims to be able to exploit an as-yet unrevealed vulnerability in the iPhone’s passcode lockout feature to
       circumvent the lockout and enable police to brute-force the password. See Thomas Fox-Brewster, Mysterious
       $15,000 ‘GrayKey’ Promises To Unlock iPhone X For The Feds, Forbes (March 5, 2018, 12:10 p.m.),
       https://www.forbes.com/sites/thomasbrewster/2018/03/05/apple-iphone-x-graykey-hack/. However, a
       recently released update to the iPhone software apparently thwarts this exploit. See Chris Welch, Apple releases
       iOS 11.4.1 and blocks passcode cracking tools used by police, The Verge (July 9, 2018, 2:17 p.m.),
       https://www.theverge.com/2018/7/9/17549538/apple-ios-11-4-1-blocks-police-passcode-cracking-tools.
       This is all the more reason for courts to consider both smartphone users’ privacy rights and the reasonable
       needs of law enforcement in a comprehensive way as soon as possible.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                         Page 43 of 68
       ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
       William J. Webster                                         Curtis T. Hill, Jr.
       Carla V. Garino                                            Attorney General of Indiana
       Webster Legal, LLC                                         Ellen H. Meilaender
       Westfield, Indiana                                         Supervising Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Katelin Eunjoo Seo,                                        Court of Appeals Case No.
                                                                  29A05-1710-CR-2466
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       May, Judge, dissenting.

[69]   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


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018             Page 44 of 68
       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.


[70]   To explain why I reach that conclusion and where my understanding of Fifth

       Amendment jurisprudence diverges from the majority’s opinion, I need to

       address numerous parts of the majority’s analysis.


                                    Privacy and the Fifth Amendment

[71]   As the majority notes, modern Fifth Amendment jurisprudence begins with

       Boyd v. United States, 116 U.S. 616 (1886). Slip op. at 15 (discussing Boyd). See

       also Wayne R. LaFave, Jerold H. Israel, Nancy J. King, & Orin S. Kerr,

       Criminal Procedure: The Boyd “principle”, in 3 CRIM. PROC. § 8.12(a) (4th ed.,

       Dec. 2017 Update) (hereinafter “LaFave et al., Boyd principle”) (“the Boyd

       analysis remains a universally accepted starting point for understanding the

       many strands of current Fifth Amendment doctrine applicable to the subpoena

       duces tecum”). Boyd held “the seizure of a man’s private books and papers to be

       used in evidence against him is [not] substantially different from compelling


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 45 of 68
       him to be a witness against himself.” Boyd, 116 U.S. at 633. As LaFave and his

       colleagues explain:


               Boyd relied on what has been described as a “property oriented”
               view of the Fourth and Fifth Amendments, built upon the
               owner’s right of privacy in the control of his lawfully held
               possessions. It recognized a special Fifth Amendment interest in
               the privacy of documents, viewing the forced production of their
               contents as equivalent to requiring a subpoenaed party to reveal
               that content through his testimony. . . . [T]he key to the Court’s
               analysis appeared to be invasion through forced production of
               the individual’s privacy interest in his possession of property in
               which the public had no entitlement.


       LaFave et al., Boyd principle.


[72]   Since that time, however, the Supreme Court has “gradually developed a series

       of doctrines that chipped away at the broad implications of Boyd’s property-

       rights/privacy analysis of Fifth Amendment protection,” id., such that “very

       little if anything, remains of Boyd’s Fifth Amendment analysis.” Id. See also

       Carpenter v. United States, 2018 WL 3073916 at *66 (2018) (Gorsuch, J.,

       dissenting) (“To be sure, we must be wary of returning to the doctrine of Boyd . .

       . [which] invoked the Fourth Amendment to restrict the use of subpoenas even

       for ordinary business records and, as Justice Alito notes, eventually proved

       unworkable.”). In fact, in 1976, the Supreme Court explicitly rejected the idea

       that the Fifth Amendment was intended to protect private information:


               The proposition that the Fifth Amendment protects private
               information obtained without compelling self-incriminating
               testimony is contrary to the clear statements of this Court that

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 46 of 68
               under appropriate safeguards private incriminating statements of
               an accused may be overheard and used in evidence, if they are
               not compelled at the time they were uttered; and that disclosure
               of private information may be compelled if immunity removes
               the risk of incrimination. If the Fifth Amendment protected
               generally against the obtaining of private information from a
               man’s mouth or pen or house, its protections would presumably
               not be lifted by probable cause and a warrant or by immunity.
               The privacy invasion is not mitigated by immunity; and the Fifth
               Amendment’s strictures, unlike the Fourth’s, are not removed by
               showing reasonableness. The Framers addressed the subject of
               personal privacy directly in the Fourth Amendment. They struck
               a balance so that when the State’s reason to believe incriminating
               evidence will be found becomes sufficiently great, the invasion of
               privacy becomes justified and a warrant to search and seize will
               issue. They did not seek in still another Amendment the Fifth to
               achieve a general protection of privacy but to deal with the more
               specific issue of compelled self-incrimination.


               We cannot cut the Fifth Amendment completely loose from the
               moorings of its language, and make it serve as a general protector
               of privacy a word not mentioned in its text and a concept directly
               addressed in the Fourth Amendment. We adhere to the view
               that the Fifth Amendment protects against “compelled self-
               incrimination, not (the disclosure of) private information.”


       Fisher v. United States, 425 U.S. 391, 400-01 (1976). See also Dan Terzian, The

       Fifth Amendment, Encryption, and the Forgotten State Interest, 61 UCLA L. Rev.

       Discourse 298, 307 (2014) (“Privacy is no longer a Fifth Amendment value.”).


[73]   Because the United States Supreme Court has explicitly rejected the notion that

       the Fifth Amendment is intended to protect any privacy interest in information,

       I find irrelevant my colleagues’ repeated references to the “trove of . . . almost

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 47 of 68
       always embarrassing, and potentially, incriminating” information they keep on

       their cell phones. Slip op. at 2-3; see also id. at 1-2 (“The amount of personal

       information contained on a typical smartphone is astounding[.]”); id. at 26 n.20

       (“[G]iven the vast amounts of personal information located on a typical

       smartphone, there should be a reasonable presumption that something

       incriminating would be discovered during review of the contents of almost

       anyone’s smartphone.”) (emphasis in original); 39 and id. at 36-38 (discussing the

       amount of data processed by and kept on phones).


                                        Encryption and Its Implications

[74]   Part of the reasoning behind the majority’s holding that forcing Seo to unlock

       her phone implicates the Fifth Amendment is because


                her act of unlocking, and thereby decrypting, her phone
                effectively recreates the files sought by the State. . . . In a very
                real sense, the files do not exist on the phone in any meaningful
                way until the passcode is entered and the files sought are
                decrypted.




       39
          In the same footnote, my colleagues express concern about “the expansive law enforcement claims that
       could be made under the plain view doctrine or the good faith exception to the Fourth Amendment or Article
       1 Section 11 of the Constitution of Indiana protections when searching a smartphone.” Slip op. at 26 n.20.
       While I am not unconcerned about the implications of plain view and good faith when the police are given
       unfettered access to the contents of a citizen’s smartphone, I also recognize that the application of the Fourth
       Amendment is not before us in this appeal and that our decision under the Fifth Amendment ought not be
       conflated with Fourth Amendment concerns. See Carpenter, 2018 WL 3073916 at *13 (“Our decision today is
       a narrow one. We do not express a view on matters not before us.”); and see Fisher, 425 U.S. at 401 (“the
       Fifth Amendment protects against ‘compelled self-incrimination, not (the disclosure of) private
       information’”).

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                        Page 48 of 68
       Slip op. at 25. I concede that encryption turns readable digital data into digital

       random noise. I cannot, however, agree that decryption constitutes “creation of

       testimony” that should implicate the Fifth Amendment.


[75]   Seo is not being forced, under the penalties of perjury or torture, to download

       new Apps or to write and send new text messages. The evidence being sought

       from Seo’s phone – text messages matching those received by D.S. from phone

       numbers that were not assigned to any identifiable person and identity masking

       applications – already are among the files on Seo’s phone, otherwise they could

       not have been encrypted when Seo locked her phone.40 As such, decryption

       does not use the contents of Seo’s mind to create new information. Instead, pre-

       existing information is simply being rendered intelligible.


[76]   Therefore, in my opinion, the law ought to treat files on a cell phone –

       encrypted or not – like prior-produced documents sitting in a file cabinet, which

       do not enjoy Fifth Amendment protection. See United States v. Hubbell, 530 U.S.
27, 35-36 (2000) (“a person may be required to produce specific documents

       even though they contain incriminating assertions of fact or belief because the

       creation of those documents was not ‘compelled’ within the meaning of the

       privilege”); id. at 36 (“Hubbell could not avoid compliance with the subpoena

       served on him merely because the demanded documents contained

       incriminating evidence, whether written by others or voluntarily prepared by


       40
          The question of whether the State has probable cause to believe it will find that expected evidence of the
       alleged crimes on Seo’s phone is a Fourth Amendment question that, once again, is not before us in this
       appeal. See supra n. 39. Accordingly, for my analysis, I assume arguendo the evidence exists on her phone.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                        Page 49 of 68
       himself.”); Fisher, 425 U.S. at 409-410 (“the preparation of all of the papers

       sought in these cases was wholly voluntary, and they cannot be said to contain

       compelled testimonial evidence, either of the taxpayers or of anyone else”). See

       also In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335,

       1342 (11th Cir. 2012) (“the files, if there are any at all in the hidden portions of

       the hard drives, are not themselves testimonial”).


[77]   To hold otherwise as to data on encrypted devices creates an ever-increasingly

       unpoliceable “zone of lawlessness” that could not have been envisioned when

       the Fifth Amendment was adopted. See Dan Terzian, The Micro-Hornbook on the

       Fifth Amendment and Encryption, 104 Geo. L.J. Online 168 (2016) (“The DOJ

       calls encryption a “zone of lawlessness.”); see also Slip op. at 12 (advanced

       security features on modern cellphones render nearly impossible brute force

       attacks on passcodes, such that “if the police want or need to gain access to an

       iPhone, the cooperation of its owner is practically a necessity”). The Fifth

       Amendment, like other portions of the Bill of Rights, was intended to balance

       the government’s interest in policing to maintain the common welfare of the

       people with each individual citizen’s interest in liberty from government

       intrusion. See California v. Byers, 402 U.S. 424, 427 (1971) (Fifth Amendment

       questions “must be resolved in terms of balancing the public need on the one

       hand, and the individual claim to constitutional protections on the other;

       neither interest can be treated lightly.”); see also Terzian, 61 UCLA L. Rev.

       Discourse at 307 (“Forming the Fifth Amendment’s core value, then, is its aim

       to achieve a fair state-individual balance. Where there is a real societal need to

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 50 of 68
       limit the privilege, the Court has repeatedly permitted compulsion upon the

       defendant.”). I do not believe the creation of a zone-of-lawlessness outside a

       person’s mind from which individual citizens could commit crimes against

       others without government recourse can be a proper balancing of those

       interests. See generally id. Accordingly, I believe we must find a path forward

       that balances the governmental and individual interests without creating a zone

       of lawlessness from which one citizen may harass another without government

       intervention. See, e.g., Kastigar v. United States, 406 U.S. 441, 445-46 (1972)

       (statutes granting immunity for compelled testimony “seek a rational

       accommodation between the imperatives of the privilege and the legitimate

       demands of government to compel citizens to testify”), reh’g denied.


                    Keys, Combinations, and the “Contents of One’s Mind”

[78]   As the majority discusses, in 1988, the United States Supreme Court decided a

       citizen’s Fifth Amendment privilege against self-incrimination was not violated

       by an order that compelled him to sign a consent form authorizing foreign

       banks to release any records of accounts in his name to the United States

       government. Doe v. United States, 487 U.S. 201, 219 (1988) (hereinafter “Doe

       2”). Justice Stevens dissented from that decision, arguing that a citizen “may in

       some cases be forced to surrender a key to a strongbox containing incriminating

       documents, but I do not believe he can be compelled to reveal the combination

       to his wall safe—by word or by deed.” Id. at 219 (Stevens, J., dissenting). In

       response, the Court’s majority noted:



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 51 of 68
               We do not disagree with the dissent that “[t]he expression of the
               contents of an 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 “be[ing]
               forced to surrender a key to a strongbox containing incriminating
               documents” than it is like “be[ing] compelled to reveal the
               combination to [petitioner’s] wall safe.”


       Id. at 210 n.9.


[79]   A majority of the Supreme Court again referenced this key-combination

       dichotomy when it decided Hubbell:


               It was unquestionably necessary for respondent to make
               extensive use of “the contents of his own mind” in identifying the
               hundreds of documents responsive to the requests in the
               subpoena. The assembly of those documents was like telling an
               inquisitor the combination to a wall safe, not like being forced to
               surrender the key to a strongbox.


       Hubbell, 530 U.S. at 43 (Hubbell’s Fifth Amendment privilege was violated by a

       subpoena that forced him to comb through thousands of documents to find

       those that fit the government’s request.).


[80]   Based on that language from Doe 2 and Hubbell, courts being asked to determine

       whether a citizen could be forced to reveal the passcode for locked electronic

       devices have frequently turned to this key-combination dichotomy and asked

       whether the electronic passcode is more like a key or a combination. Some

       courts have held that a passcode is more like a combination because both are

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 52 of 68
       kept in a person’s mind, such that the production of the password would be

       testimonial and is prohibited by the Fifth Amendment.41 See, e.g., United States

       v. Kirschner, 823 F. Supp. 2d 665, 668-9 (E.D. Mich. 2010) (government cannot

       compel disclosure of password because it requires defendant “to divulge

       through his mental processes his password”); In re Boucher, No. 2:06-mj-91,

       2007 WL 4246473, at *4 (D. Vt. Nov. 28, 2007) (“A password, like a

       combination, is in the suspect’s mind, and is therefore testimonial and beyond

       the reach of the grand jury subpoena.”) (hereinafter “Boucher 1”, rev’d, No. 2:06-

       mj-91, 2009 WL 424718 (D. Vt. Feb 19, 2009) (enforcing subpoena seeking

       decrypted data, but not the password itself) (hereinafter “Boucher 2”).


[81]   However, at least one commentator on Fifth Amendment jurisprudence argues

       courts ought to reconsider whether to apply this key-combination dichotomy to

       electronic passcodes:


                Passwords should not be forced into this key-combination
                dichotomy. They are neither a key nor a combination, and Court
                doctrine suggests the dichotomy should not be mechanically
                applied to new unlocking mechanisms. This dichotomy
                developed because keys and combinations have different Fifth
                Amendment implications—only combinations present the danger
                of compelling the creation of evidence. So it follows that new
                unlocking mechanisms with new implications should also be
                treated differently. Passwords for encrypted data present new


       41
          If, however, the passcode were written down on a piece of paper and placed in a drawer, then production
       of that passcode undoubtedly could be compelled because in those circumstances the passcode is
       indistinguishable from a key. Terzian, 104 Geo. L.J. Online at 169 n.8 (noting “if the password is physically
       recorded somewhere, the government can subpoena the production of that password” but “the subpoena
       won’t yield anything if (when) the defendant responds that there is no written password”).

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                      Page 53 of 68
               implications in interest balancing and therefore should be treated
               differently. First, consider the interest balancing with safe
               combinations. There, a fair state-individual balance favors the
               individual—and compelled production is prohibited—because
               there is little state need; law enforcement can easily crack a safe
               through its own efforts. Contrast that with passwords. Law
               enforcement usually cannot bypass them, leaving the data
               inaccessible and creating great need for the password or
               decrypted data’s production.


       Terzian, 61 UCLA L. Rev. Discourse at 301-2.


[82]   Others have challenged the logic of applying this key-combination dichotomy

       because the government’s ability to open an electronic device should not be

       determined by “whether [someone] protected that drive using a fingerprint key

       or a password composed of symbols.” Spencer, 2018 WL 1964588 at *2. See

       also State v. Stahl, 206 So. 3d 124, 135 (Fla. Ct. App. 2016) (“we are not inclined

       to believe that the Fifth Amendment should provide greater protection to

       individuals who passcode protect their iPhones with letter and number

       combinations than to individuals who use their fingerprint as the passcode”).

       As the majority notes, there is little doubt that the government could compel a

       citizen to display a physical characteristic, even if that characteristic might be

       incriminating, because it is not testimonial. Slip op. at 14 n.14.42 Thus,

       arguably, courts could compel citizens to open an electronic device that is



       42
          The majority then asserts this reasoning is “outdated and ironic when compared with” modern electronic
       scanning mechanisms. Slip op. at 14 n.14. The majority does not explain how or why advanced scanning
       equipment should lead courts to overturn the long-standing rule that physical characteristics are not
       testimony, and I thus cannot agree with the majority that this rule is “outdated and ironic.” Id.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                    Page 54 of 68
       unlocked by fingerprint, retinal scan, or face scan, because production of those

       physical characteristics is not “testimony” prohibited by the Fifth Amendment.

       See Schmerber v. California, 384 U.S. 757, 764 (1966) (physical evidence can be

       compelled and Fifth Amendment does not protect against the compulsion to

       provide fingerprints); Hubbell, 530 U.S. at 34-5 (“[E]ven though the act may

       provide incriminating evidence, a criminal suspect may be compelled to put on

       a shirt, to provide a blood sample or handwriting exemplar, or to make a

       recording of his voice.”) (footnotes omitted); United States v. Hook, 471 F.3d 766,

       773-74 (7th Cir. 2006) (“[T]he taking of blood samples or fingerprints is not

       testimonial evidence and as such is not protected by the Fifth Amendment.”),

       cert. denied. 549 U.S. 1343.


[83]   The majority herein decides: “under the 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.” Slip op. at 22. I do not believe the

       precedent compels the result the majority reaches, because while a passcode is

       similar to a combination, an electronic device arguably is materially

       distinguishable from a wall safe. Nor do I believe the majority ought to be

       deciding an issue that is not before us today, as Seo has not been asked to reveal

       her password. See Carpenter, 2018 WL 3073916 at *13 (“Our decision today is a

       narrow one. We do not express a view on matters not before us. . . . As Justice

       Frankfurter noted when considering new innovations in airplanes and radios,

       the Court must tread carefully in such cases, to ensure that we do not

       ‘embarrass the future.’”). I accordingly dissent from the majority’s


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 55 of 68
       unnecessarily holding a passcode is the equivalent of a combination to a wall

       safe.


[84]   The trial court instead ordered Seo to produce the decrypted device. The

       Eleventh Circuit considered whether forced decryption was testimonial and

       determined it too was compelled testimony prohibited by the Fifth Amendment

       because “the decryption and production of the hard drives would require the

       use of the contents of Doe’s mind and could not be fairly characterized as a

       physical act that would be nontestimonial in nature.” In re Grand Jury Subpoena

       Duces Tecum Dated March 25, 2011, 670 F.3d at 1346.


[85]   This Eleventh Circuit holding has been challenged on two grounds:


               First, it misreads Supreme Court dicta. The dicta regards only
               compelling production: The government can compel the
               production of keys but not the production of combinations. It’s
               silent on whether the government can compel unlocking (i.e.,
               forcing a person to enter a combination without producing a
               copy). This silence, coupled with the dicta’s rationale, suggests
               that compelling unlocking may be constitutional. The reason for
               the Court distinguishing between key- and combination-
               productions stems from the Court’s concern over compelled
               creation. Combinations may not exist outside a person’s mind,
               so producing them would require compelling the creation of a
               physical version, and it is this compelled creation that makes the
               response testimonial. There are no such compelled creation
               concerns with compelled unlocking through forced decryption—
               the data is already there, the person just needs to unlock it; and
               unlocking it does not require creating a physical copy of the
               password.



       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 56 of 68
                  The second stumble comes in the Eleventh Circuit’s analysis of
                  mental effort. Entering an oft-used password requires no more
                  mental effort than finding a key. You remember the key’s
                  location and then find it, just as you remember the password and
                  then input it.


       Dan Terzian, Forced Decryption as Equilibrium—Why It’s Constitutional and How

       Riley Matters, 109 Nw. U. L. Rev. Online 56, 59-60 (2014).43


[86]   The majority herein explicitly rejects the State’s attempt to distinguish

       production of the passcode from production of the unlocked device “because

       the end result is the same: the State is compelling Seo to divulge the contents of

       her mind.” Slip op. at 25. By so holding, the majority has fallen into the first

       “stumble” noted above – Seo is not being required to “divulge” anything from

       her mind. Just the opposite, she is unlocking the device without revealing the

       contents of her mind, and to the extent she is required to use her mind to do so,

       the mental effort is no greater than the mental effort required to locate and



       43
            Elsewhere, Terzian objected to the Eleventh Circuit’s decision thus:

                  [The Eleventh Circuit] addressed the question of whether the Fifth Amendment bars the
                  compelled decryption and production of the now-unencrypted data. It held affirmatively
                  and explicitly framed the issue within this dichotomy, finding compelled decryption “most
                  certainly more akin to requiring the production of a combination.”
                  This reasoning ignores a pivotal prefatory question: Do passwords even belong in this
                  dichotomy? A computer password is not a safe combination. Sure, they are similar, but
                  that does not mean they must be treated the same. Combinations and keys are similar—
                  both unlock safes—yet they are treated differently because only the former implicated
                  compelled creation concerns.
                  It follows, then, that courts should treat passwords and combinations differently if they
                  have meaningfully different Fifth Amendment implications. And they do. Passwords and
                  encrypted data implicate fair balancing concerns that support permitting compelled
                  production, while combinations do not.
       Terzian, 61 UCLA L. Rev. Discourse at 306.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                      Page 57 of 68
       produce a key to a file cabinet. For these reasons, I would hold the only self-

       incrimination ground for challenging the compelled production of an unlocked

       and decrypted electronic device “lies in the testimonial aspects of the act-of-

       production,” just as it does with the production of preexisting papers. Wayne

       R. LaFave, Jerold H. Israel, Nancy J. King, & Orin S. Scott, The Schmerber rule,

       3 CRIM. PROC. § 8.12(d) n.48 (4th ed. Dec. 2017 Update) (hereinafter “LaFave

       et al., Schmerber rule”). And it is to this issue that I turn next.


             Act of Production, Foregone Conclusion, & Reasonable Specificity

[87]   The act of producing a decrypted device might itself be protected by the Fifth

       Amendment. See Hubbell, 530 U.S. at 37 (“Whether the constitutional privilege

       protects . . . the act of production itself . . . is a question that is distinct from the

       question whether the unprotected contents of the documents themselves are

       incriminating.”). To explain why I do not believe Seo’s production of her

       decrypted iPhone implicates Fifth Amendment concerns, I begin with a

       discussion of the relevant case law.


[88]   Our country’s Highest Court explained:


               The act of producing evidence in response to a subpoena
               nevertheless has communicative aspects of its own, wholly aside
               from the contents of the papers produced. Compliance with the
               subpoena tacitly concedes the existence of the papers demanded
               and their possession or control by the taxpayer. It would also
               indicate the taxpayer’s belief that the papers are those described
               in the subpoena. The elements of compulsion are clearly present,
               but the more difficult issues are whether the tacit averments of
               the taxpayer are both “testimonial” and “incriminating” for

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018    Page 58 of 68
               purposes of applying the Fifth Amendment. These questions
               perhaps do not lend themselves to categorical answers; their
               resolution may instead depend on the facts and circumstances of
               particular cases or classes thereof.


       Fisher, 425 U.S. at 410 (internal citation omitted).


[89]   In Fisher, the government subpoenaed tax preparation documents that had been

       produced by an accountant and were in the accountant’s files. The Court noted

       the Fifth Amendment did not apply to the documents themselves “because the

       documents were created voluntarily and the Government had not compelled

       their creation.” Jeffrey Kiok, Missing the Metaphor: Compulsory Decryption and the

       Fifth Amendment, 24 B.U. Pub. Int. L.J. 53, 61 (Winter 2015) (citing Fisher, 425
U.S. at 410 n.11). The Fisher Court determined “the act of producing [the

       papers] would not itself involve testimonial self-incrimination.” 425 U.S. at

       411.


               The papers belong to the accountant, were prepared by him, and
               are the kind usually prepared by an accountant working on the
               tax returns of his client. 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 sum total of the Government’s
               information by conceding that he in fact has the papers. Under
               these circumstances by enforcement of the summons “no
               constitutional rights are touched. The question is not of
               testimony but of surrender.”


       Id. (internal citations omitted).


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 59 of 68
[90]   That holding by the Fisher Court created what has become known as the

       foregone conclusion standard, which has been described thus:


               Where the existence and possession of the documents to be
               produced are a “foregone conclusion,” the act of production
               similarly “adds little or nothing to the sum total of the
               government’s information” and therefore is no more testimonial
               than other compelled physical acts. The government in such a
               case obviously is not seeking the assertions of the subpoenaed
               party as to the facts of existence and possession, and his
               incidental communication as to those facts, inherent in the
               physical act that the government had the authority to compel,
               therefore does not rise to the level of compelled “testimony.”


       Wayne R. LaFave, Jerold H. Israel, Nancy J. King, & Orin S. Kerr, Testimonial

       character and the foregone conclusion standard, 3 CRIM. PROC. § 8.13(a) (4th ed.

       Dec. 2017 Update) (hereinafter “LaFave et al., Foregone Conclusion”).


[91]   In United States v. Doe, 465 U.S. 605, 613 (1984) (hereinafter, “Doe 1”), the

       Supreme Court was again asked to decide whether the act of producing

       documents would violate a citizen’s Fifth Amendment right. The District

       Court had found “enforcement of the subpoenas would compel [respondent] to

       admit that the records exist, that they are in his possession, and that they are

       authentic.” Id. at 613 n.11. The Supreme Court noted it could “not over turn

       that finding unless it has no support in the record.” Id. at 614. Based thereon,

       the Supreme Court held Doe’s act of producing the subpoenaed documents to

       be protected by the Fifth Amendment privilege against self-incrimination. Id. at

       614.


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 60 of 68
               Subsequent to Doe [1], lower court rulings generally insisted that
               the foregone conclusion standard be met by the government
               “demonstrat[ing] with reasonable particularity that it knows of
               the existence and location of subpoenaed documents.” Those
               rulings recognized, however, that there are a variety of ways in
               which such a demonstration may be made. These include: some
               prior action by the subpoenaed party acknowledging that the
               particular documents existed and were in his possession;
               identification of some person (as in the case of the accountants in
               Fisher) who can testify that the particular documents were
               previously in the possession of the subpoenaed party; documents
               or similar evidence in the government’s possession which would
               indicate that the subpoenaed documents exist and are in the
               subpoenaed person’s possession; and the fact that the documents
               are of a type regularly sent to the subpoenaed person by another
               doing business with that person, combined with absence of any
               dispute as to whether he received such documents. Similarly, as
               to authentication, courts held that the foregone conclusion
               standard is met where the government can point to another
               person (e.g., the preparer of the document) who can authenticate,
               or where authentication can be achieved by other means (e.g.,
               comparison with other documents independently authenticated
               or matching the handwriting with that of the subpoenaed party).
               As with existence and possession, the government must point to
               a specific avenue of authentication “by means independent of the
               producer’s act of production. To merely state that [the
               government] will not utilize the act of production would amount
               to no more than an informal offer of immunity, which Doe [1]
               rejected as an inappropriate grounding for enforcing the
               subpoena.


       LaFave et al., Foregone Conclusion (footnotes omitted).


[92]   Then, in Hubbell, the Supreme Court was asked to decide “whether the Fifth

       Amendment privilege protects a witness from being compelled to disclose the

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 61 of 68
       existence of incriminating documents that the Government is unable to describe

       with reasonable particularity[.]” Hubbell, 530 U.S. at 29-30 (footnote omitted).

       There, the governments subpoenaed eleven categories of documents from a

       grand jury witness, Hubbell. Hubbell invoked his Fifth Amendment privilege

       and refused to admit whether he had such documents. The prosecutor then

       promised Hubbell immunity, and Hubbell produced 13,120 pages of documents

       and testified those were all the documents in his control that were requested by

       the subpoena.44 Id. at 31. Based on the information in those documents, the

       government brought a second set of charges against Hubbell for crimes the

       government had not been investigating when Hubbell responded to the

       subpoena. Instead, the government had discovered those crimes by studying

       the contents of the documents Hubbell produced. Id. at 32.


[93]   The Supreme Court noted:


                [W]hen the custodian of documents responds to a subpoena, he
                may be compelled to take the witness stand and answer questions
                designed to determine whether he has produced everything
                demanded by the subpoena. The answers to those questions, as
                well as the act of production itself, may certainly communicate
                information about the existence, custody, and authenticity of the
                documents.




       44
          All, that is, except those protected by attorney-client privilege or work-product privilege. Hubbell, 530 U.S.
       at 31.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                         Page 62 of 68
       Id. at 37. The Court then held Hubbell’s act of production had a testimonial

       aspect because the government had not demonstrated the testimony produced

       was a foregone conclusion:


               Whatever the scope of this “foregone conclusion” rationale, the
               facts of this case plainly fall outside of it. While in Fisher the
               Government already knew that the documents were in the
               attorneys’ possession and could independently confirm their
               existence and authenticity through the accountants who created
               them, here the Government has not shown that it had any prior
               knowledge of either the existence or the whereabouts of the
               13,120 pages of documents ultimately produced by respondent.


       Id. at 44-45.


[94]   Because Hubbell did not clarify the scope of the foregone conclusion standard,

       lower courts have continued to struggle with determining whether an act of

       production is both testimonial and incriminating based “on the facts and

       circumstances of particular cases.” Fisher, 425 U.S. at 410. Courts have

       especially had difficulty when applying this standard to compulsory decryption

       of an electronic device, “often reconsidering and overturning their own prior

       orders when faced with changing facts, or facts that were not well-understood in

       the first place.” Kiok, 24 B.U. Pub. Int. L.J. at 65.


[95]   The majority’s review of the parties’ arguments provides citation to many of

       these cases, with parentheticals describing the various holdings, so I need not

       repeat all of them here. See Slip op. at 29-31. Instead, I provide this summary:




       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018   Page 63 of 68
               A defendant’s ability to invoke the Fifth Amendment in the
               context of a compulsory order to decrypt will depend on the
               foregone conclusion doctrine and events that in all likelihood
               long preceded the subpoena or warrant. The foregone conclusion
               doctrine will permit the Government to compel a defendant
               when the Government can otherwise prove that the hard drive
               and its data was the sole property of the defendant. If a
               defendant confesses to possession of the drive, that may suffice.
               If the Government can view some portion of the hard drive and
               determine that the files belonged to one individual, that too may
               suffice.


       Kiok, 24 B.U. Pub. Int. L.J at 77-78 (footnotes omitted).


[96]   Herein, the majority holds that


               what the State seeks to compel is not merely the password, but
               the entire contents of Seo’s iPhone. Thus, for the foregone
               conclusion rationale 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.


       Slip op. at 31 (emphasis in original).


[97]   However, in so holding, the majority has followed authority that, I believe,

       misapplies the foregone conclusion doctrine to electronic devices. 45 The State




       45
          In addition, the majority’s holding relies on a premise that I do not accept – that the contents of a
       decrypted electronic device are the equivalent of testimony created by compulsion. See supra Encryption and
       Its Implications.

       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                    Page 64 of 68
       has not presented Seo with a subpoena requiring her to produce each text

       message she sent to D.S., such that Seo must, like Hubbell, use her mind to

       discern which text messages fit within the categories of messages requested and

       then testify that she produced all relevant requested evidence. See Hubbell, 530
U.S. at 45 (“the Government has not shown that it had any prior knowledge of

       either the existence or the whereabouts of the 13,120 pages of documents

       ultimately produced by respondent”). Nor has Seo been ordered to sort

       through thousands of electronic devices in her possession to produce those

       devices that contain the requested evidence.


[98]   Instead, the State has asked Seo to unlock a file cabinet so that the State may

       search within that file cabinet for evidence of specific crimes the State is already

       investigating. The State’s right to access such a file cabinet will undoubtedly

       require a Fourth Amendment showing of probable cause to believe the

       particular evidence sought will exist within that cabinet. See U.S. Const.

       amend. IV (“no Warrants shall issue, but upon probable cause, supported by

       Oath or affirmation, and particularly describing the place to be searched, and

       the persons or things to be seized”). But the validity under the Fourth

       Amendment of the order for Seo to open her phone is not before us, and the

       Fifth Amendment does not require the State to demonstrate in advance “the

       discrete contents” of the evidence that will be found in a cabinet,46 see United



       46
         Even if I could agree with my colleagues that the reasonable particularity standard required the State to
       make a showing, with reasonable particularity, of the evidence it expects to find within the electronic device
       being sought, I would be hesitant to hold, based on the record before us, that the State had not met that


       Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                        Page 65 of 68
States v. Fricosu, 841 F. Supp. 2d 1232, 1237 (D. Col. 2012) (“[T]he government

knows of the existence and location of the computer’s files. The fact that it

does not know the specific content of any specific documents is not a barrier to

production[.]”), because the Fifth Amendment does not protect the content of

the documents. See Fisher, 425 U.S. at 409 (“the Fifth Amendment would not

be violated by the fact alone that the papers on their face might incriminate the

taxpayer, for the privilege protects a person only against being incriminated by

his own compelled testimonial communications”).




standard herein. At the hearing on the State’s motion for rule to show cause, Detective Inglis testified that
Seo initially used her own phone number to contact D.S.; however,
         [t]hen the contact to [D.S.] started coming from more random phone numbers that when I
         would try and research the phone number to find out who it belonged to, or who it was
         assigned to, there was no record of it being assigned to anybody and the numbers would
         change. He would get a dozen or 30 phone calls or texts from one number and then the
         next day it would be a different number but it would obviously be conversations that were
         linked with the same.
(Tr. at 7.) D.S. was contacted by “dozens of phone numbers.” (Id.) Detective Inglis said “it appeared that
she was using an ap [sic] or an internet program such as Google Voice or Pinger to disguise her phone
number so that it wouldn’t show up in his caller ID.” (Id. at 8.) The State asked Detective Inglis if he had
subpoenaed the Apps or Internet services that could mask identity, and he testified:
         There are numerous, and there’s probably some that I’m not even aware of, numerous
         entities out there like Google Voice and Pinger and Text Now and Text Me, and I don’t
         know, I don’t have an all-encompassing list of them, however if I had the phone I could see
         which ones she had accessed.
(Tr. at 12.) Thus, it seems self-evident the State is seeking evidence on Seo’s phone of an App or multiple
Apps that would allow her to mask her identity and evidence that Seo’s phone had generated the phone calls
and texts that D.S. received from phone numbers that did not belong to any other person.
Also troubling for me is the majority’s insistence “the State has not described with reasonable particularity
the digital files or data it seeks to compel,” (Slip op. at 33 n.25; and see id. at 32), when the Record provided to
us on Appeal does not contain any of the documentation or testimony provided to the trial court before the
search warrant was issued. I acknowledge “the warrant itself does not describe with any particularity the
digital information the State seeks to compel,” (id. at 33), but I would not infer from the absence of such
description in the warrant that the evidence is likewise absent from portions of the Record that Seo has not
provided to us.



Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                            Page 66 of 68
[99]    Because of this material distinction between the order in Hubbell and this order

        to open an iPhone, the only testimony being implied by Seo’s act of decrypting

        the phone is that the phone is hers and she has the ability to unlock it. 47 These

        are facts the State can already prove by “clear and convincing evidence,”

        Spencer, 2018 WL 1964588 at *3 (“The appropriate standard is instead clear and

        convincing evidence. This places a high burden on the government to

        demonstrate that the defendant’s ability to decrypt the device at issue is a

        foregone conclusion.”), because Seo has already unlocked the phone for police

        when she gave it to them to download, the investigating officer had called Seo

        at the phone number associated with the phone in question, and Seo admitted

        the phone was hers when she was arrested. As such, Seo’s act of production

        does “not itself involve testimonial self-incrimination.” Fisher, 425 U.S. at 411;

        see Spencer, 2018 WL 1964588 (foregone conclusion applies where defendant

        admitted buying and encrypting external hard drive matching one found in his

        house); Friscosu, 841 F. Supp. 2d at 1236-37 (foregone conclusion applies where

        State knows computer belongs to defendant and knows she has password).


                                                        In Summary

[100]   The Fifth Amendment is intended to prohibit the government from compelling

        incriminating testimony, not to protect the privacy of personal information.

        The Fifth Amendment could not have been intended to create a zone-of-


        47
           Moreover, it is unnecessary to “ask whether the government has established with ‘reasonable particularity’
        that the defendant is able to decrypt a device. . . . [A] defendant’s ability to decrypt is not subject to the same
        sliding scale. He is either able to do so, or he is not.” Spencer, 2018 WL 1964588 at *3.

        Court of Appeals of Indiana | Opinion 29A05-1710-CR-2466 | August 21, 2018                           Page 67 of 68
        lawlessness outside a person’s mind that the government would be unable to

        police to maintain the safety of all citizens. While decrypting an electronic

        device requires the use of the contents of the owner’s mind, the task requires

        such little mental effort that I would hold the only Fifth Amendment barrier to

        production of the decrypted device is if the act of production itself implies

        incriminating testimony. The act of production cannot, however, produce

        incriminating testimony when the facts confirmed by that decryption – that the

        citizen owns the device and has the ability to decrypt it – are a foregone

        conclusion because the government already has clear and convincing evidence

        of those facts.


[101]   As Seo unlocked her phone for police on another occasion, as police had

        contacted Seo on that phone, and as Seo admitted the phone was hers when she

        was arrested, I would hold Seo’s possession and ability to decrypt the phone are

        foregone conclusions. Seo therefore can be compelled to decrypt her phone

        without infringing the Fifth Amendment.


[102]   For all these reasons, I respectfully dissent.




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