[Law & Story] The iPhone Passwords of Han Donghoon and Son Junsung

From the left, Prosecutor Han Dong-hoon, former Deputy Director of the Supreme Prosecutors' Office Investigation Information Policy Division Son Jun-sung. / Photo by Kang Jin-hyung, Yonhap News, Asia Economy aymsdream@

In Choi Seok-jin's Legal Stories, we aim to cover various issues revolving around the legal community, focusing on courts and prosecutors. We plan to write somewhat freely on topics such as the legal points or prospects of major cases, behind-the-scenes stories, and untold anecdotes without being bound by specific themes or formats. Today marks the twelfth story, which is about the iPhone password, known for its strong security.

[Asia Economy, Choi Seok-jin, Legal Affairs Reporter] The iPhone, which became famous due to Prosecutor Han Dong-hoon in the so-called ‘Channel A coercion attempt’ case once called the ‘prosecutor-media collusion’ case, has recently reappeared.

This is because it was revealed that the mobile phone used by Son Jun-sung, former Investigation Information Policy Officer at the Supreme Prosecutors' Office, who is involved in the ‘report solicitation’ allegations under investigation by the High-ranking Officials’ Crime Investigation Unit (HOCI), is an iPhone.

The iPhone is well-known for its superior security system compared to other models. Although I am not an expert in IT, searching related articles shows that the iPhone uses an ‘end-to-end encryption’ method, which encrypts messages at every stage from initial input to final reception without storing them in plain text.

Therefore, even if the data inside the iPhone is copied and transferred, only encrypted strings of characters can be seen, and ultimately, the lock password on the phone must be unlocked to properly check the internal information.

However, the iPhone’s 6-digit password, which can be created by combining numbers, uppercase, and lowercase English letters, theoretically allows for 56 billion combinations. If the password is entered incorrectly more than five times, there is a delay in password input: 1 minute, then 5 minutes, 15 minutes, and 1 hour sequentially. The exact delay times may vary with the latest models. There is also talk that if the password is entered incorrectly more than 10 times, the data stored inside the phone is permanently deleted through an ‘auto-format’ function.

To avoid this, a technique called ‘NAND mirroring,’ which separates the data storage device inside the device, is used during iPhone forensics. In any case, it seems much more difficult to unlock compared to domestically produced phones using the Android operating system.

Recently, during the warrant hearing process for former Policy Officer Son, the HOCI claimed that Son’s refusal to unlock his phone, i.e., not providing the iPhone password, was one of the circumstances supporting the necessity of his detention due to ‘concerns of evidence destruction.’

If Son’s iPhone is unlocked, it would contain all the answers to key issues that the HOCI must uncover through investigation: why Son handed the complaint to Kim Woong, a member of the People Power Party; who ordered Son to do so; and who Son instructed to write the complaint. Since he refuses to open it, the HOCI argues this can be seen as an attempt to destroy evidence.

Of course, the HOCI’s claims or perspective are not entirely wrong. Many people can sympathize with this view.

Similar criticisms were raised last year regarding Prosecutor Han Dong-hoon.

If Han, as he claims, did not conspire with Channel A reporters to threaten Lee Cheol, former CEO of Value Invest Korea, who is imprisoned, why then could he not confidently provide the iPhone password seized by the prosecution?

Lee Jae-myung, Governor of Gyeonggi Province, who was under police investigation in 2018 for forcibly hospitalizing his older brother, also did not provide the passwords for two iPhones seized by the police.

Recently, police investigated professional volleyball player Jung Mo on charges of assaulting his ex-girlfriend and illegal filming without consent, but reportedly could not unlock Jung’s iPhone password, resulting in a decision not to prosecute on the illegal filming charge.

Of course, there are also many cases where suspects under investigation voluntarily provide their iPhone passwords. Recently, Yoo Dong-gyu, former Planning Director of Seongnam Urban Development Corporation and a key figure in the ‘Daejang-dong development project preferential treatment and lobbying’ allegations, reportedly provided the iPhone password secured by the prosecution. However, it is known that he did not provide the Telegram password.

"Suspects provide phone passwords only when scared or when there is nothing incriminating"

A prosecutor said, “Suspects provide their phone passwords either because they are scared or because there is nothing incriminating inside.”

In the first case, even if the phone does not contain evidence, the prosecution may already have sufficient other evidence to prove the crime or have statements from accomplices or other related persons making it difficult for the suspect to escape. From the suspect’s perspective, cooperating with the prosecution to seek leniency is a better option, so they willingly provide the password.

Usually, about 8 out of 10 suspects voluntarily provide their phone passwords when asked by prosecutors, and most fall into this category. Also, except for iPhones, suspects may cooperate voluntarily thinking that digital forensics will eventually unlock the password anyway.

The other case is when the phone mainly used has already been discarded, and the phone seized by the prosecution is a recently replaced one, so even if its contents are disclosed, it would not cause significant damage. Yoo Dong-gyu’s case may fall into this category, as it is known he used multiple phones.

The principle of refusal to self-incriminate... The burden of proof lies with the prosecutor

However, it is clear that human nature is to avoid providing the password to a phone containing key evidence supporting one’s criminal charges, and the investigative agency cannot force the person to provide it. This is true unless it is a dictatorship ignoring democracy or the rule of law.

For a crime to be established, the elements of the crime must be met, it must be unlawful, and responsibility must be recognized. One element of responsibility is ‘expectation possibility.’ Simply put, it questions whether it was reasonable to expect the person to act differently in that situation. Depending on the case, if expectation possibility is absent, responsibility may be reduced or negated, and the crime may not be established.

For example, if a husband is legally obligated to rescue both his wife and child who simultaneously fall into water during play, and he fails to rescue them causing drowning, he may be charged with murder by omission. But if it is physically impossible to rescue both simultaneously and he rescues one while leaving the other to die, can he be held responsible for murder? The law does not expect the impossible from humans.

The reason why destroying or hiding one’s own criminal evidence is not punishable under current law is here. Under criminal law, the crime of evidence destruction applies only when destroying or hiding evidence related to another person’s criminal or disciplinary case, not when destroying evidence related to one’s own crime. This is because it is unreasonable to expect a person who committed or is suspected of committing a crime not to destroy evidence unfavorable to themselves.

It is impossible to expect a perpetrator who stabbed or seriously injured someone with a weapon to voluntarily hide or discard the weapon or submit evidence to the investigative agency. Expecting such behavior contradicts human nature. Therefore, hiding or destroying one’s own criminal evidence is not illegal and does not constitute a crime.

The Supreme Court punishes evidence destruction only when the person does not destroy the evidence themselves but causes or conspires with a third party to destroy evidence of their crime. This is because it is blameworthy to induce a person without intent to commit evidence destruction to develop criminal intent and commit the crime.

For similar reasons, criminal procedure law includes the principle or privilege of refusal to self-incriminate. No one is obliged to admit their own guilt. That is, a person accused or suspected of a crime has the right not to be forced to make self-incriminating statements. This has long been widely recognized in democratic countries such as the UK and the US and is enshrined in our Constitution as the right to refuse to testify. (Constitution Article 12, Clause 2: All citizens shall not be subjected to torture and shall not be forced to testify against themselves in criminal cases.)

In practice, during investigations by prosecution or police, or trials in court, if any question from prosecutors or judges would result in self-incrimination and be disadvantageous, the accused can refuse to answer. This is a fundamental principle of the Constitution and criminal procedure law.

Above all, under criminal procedure law, the burden of proof lies with the prosecutor. Even if the suspect does not submit key evidence or answer important questions, they cannot be forced to do so, and the prosecution must prove the charges through other evidence or witnesses. This is the duty of investigative agencies.

From this perspective, the prosecution or HOCI questioning Prosecutor Han or former Policy Officer Son with “Why don’t you provide the iPhone password?” or complaining “We cannot continue the investigation because they won’t give the password” goes against the basic ideals of the Constitution and criminal procedure law.

Of course, one might argue that if they are truly innocent and confident, they should provide the password. Many citizens express this view in comments on articles related to Prosecutor Han.

However, just because Han or Son are prosecutors themselves, or because they once conducted investigations, does not mean they must actively cooperate by unlocking their phones when they themselves become subjects of investigation.

The principle of refusal to self-incriminate and the constitutional right to refuse testimony were developed historically as a reflection on eras when torture was routinely used to force confessions and mass public trials were held. Allowing exceptions to this could eventually harm oneself or one’s family.

From this viewpoint, it is difficult to accept HOCI’s criticism of former Policy Officer Son as “imitating criminal behavior” or “showing deplorable conduct.” The claim that “If not involved in the crime, they should provide the password to cooperate and prove innocence” is merely HOCI’s wish and cannot be imposed on suspects under investigation.

With the Channel A case acquittal, the rationale to delay Prosecutor Han’s non-prosecution disappears

MBC reported on the ‘prosecutor-media collusion’ in March last year. Former Minister of Justice Choo Mi-ae demoted Prosecutor Han, who was Deputy Chief Prosecutor at Busan High Prosecutors’ Office, to the Legal Training Institute in Jincheon in June last year.

Jung Jin-woong, then Chief of the Criminal Division 1 at Seoul Central District Prosecutors’ Office, who led the ‘prosecutor-media collusion’ investigation, was found guilty in the first trial for ‘abuse of authority’ during the seizure of Han’s phone SIM card in July last year. However, after the abuse of authority incident, Choo promoted him to Deputy Chief Prosecutor. Even after Jung was indicted for abuse of authority, Choo did not accept requests to suspend him, and his successor, Minister Park Beom-gye, only transferred him to the Legal Training Institute in August this year after the first trial guilty verdict.

Choo and Jung confidently claimed that there was overwhelming evidence of ‘prosecutor-media collusion,’ but when former Channel A reporter Lee Dong-jae was indicted on August 5 last year, Han was not named as an accomplice in the indictment. In effect, the ‘prosecutor’ part was removed from the ‘prosecutor-media collusion’ indictment. It has been 1 year and 3 months since Lee was indicted, and 4 months since the court acquitted him in July.

At this point, Han should also be non-prosecuted and the case closed, but the prosecution has not yet made a decision. The reason is that they have not been able to unlock his iPhone password, so they cannot conclude the investigation.

There is considerable criticism inside and outside the prosecution regarding this behavior. If there is evidence and confidence in collusion with Lee, they should indict confidently; if not, they should quickly dismiss the case and reinstate Han from disciplinary demotion. Doing neither and just delaying is unreasonable.

It seems that the reason Seoul High Prosecutor General Lee Sung-yoon, when he was head of the Central District Prosecutors’ Office, repeatedly ignored the investigation team’s non-prosecution opinions and failed to close Han’s case was due to his stance opposing former Prosecutor General Yoon Seok-youl and former Minister Choo Mi-ae.

Choo once proposed legislation to force disclosure of Han’s phone password but withdrew it after harsh criticism. The backlash from non-prosecuting Han must be a heavy burden.

As mentioned earlier, the burden of proving criminal charges lies with the prosecution. The responsibility to unlock the phone password is on the investigative agency, not the suspect.

If all suspects were subjected to lie detector tests and the results could be used as evidence in court, investigations would be ten times easier. With technological advances, lie detector accuracy reportedly exceeds 90%.

If all suspects were forced to take lie detector tests and refusal was presumed guilty, it would be easier to approach the substantive truth, but we must consider why such investigations are not allowed.

“Better to let ten criminals go free than to convict one innocent person.” The presumption of innocence is the core principle of criminal law.