Mass. Court Orders Defendant to Unencrypt His Computer

The Supreme Court of Massachusetts has ordered a defendant to decrypt his computer after he told police during a post-arrest interview, he had the ability to do so.

Because Gelfgatt already admitted to police that he owned and controlled the seized computers and had the ability to decrypt them, the court found that the act of decryption would not reveal anything new to the police. Therefore, the act of compelled decryption was not “testimonial.” Normally, the Fifth Amendment privilege prevents the government from forcing a witness to disclose incriminating information in his mind (like a password not written down anywhere else)—but only if that is information the police do not already know.

The defendant is a lawyer charged with mortgage fraud. He should have known better. Miranda rights are there for a reason -- use them or lose them.

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    The Ruling Makes No Sense (5.00 / 1) (#1)
    by Robot Porter on Thu Jun 26, 2014 at 07:14:51 PM EST
    They want him to decrypt the computers because of the evidence they contain.

    They don't know the decryption passwords.  They don't know the exact evidence on the computers.

    But the court claims "the act of decryption would not reveal anything new to the police".

    But it clearly would.  It would reveal the password(s).  Something they don't know.  And the contents of computers.  Which they don't know.

    If it's information they already know, they should either be (a) able to decrypt the computers themselves; or (b) not need to decrypt the computers because all the information they contain is stuff they already know.

    This is a technical but correct application (none / 0) (#2)
    by Peter G on Thu Jun 26, 2014 at 09:17:12 PM EST
    of the Fifth Amendment self-incrimination clause.  The clause only protects the accused from being "compelled ... to be a witness against himself," that is, providing testimonial information.  The password, in and of itself, is not testimonial.  The pre-existing contents of the computer is not testimonial, nor was he compelled to create it.  The statement (or implied statement), "I know the decryption tool for this computer, and it is [12345]" is testimonial. He could not be forced ("compelled") to say that (or to engage in an act implying the statement -- "the act of production") if he hadn't volunteered it already.

    Logical... (none / 0) (#3)
    by Cody on Fri Jun 27, 2014 at 09:05:10 AM EST
    ...but not how the law works.

    From the court's point of view, either the computer contains nothing incriminating (in which case you can't plead the fifth), or it contains incrimination evidence for someone.  If it doesn't incriminate you, then you can't plead the fifth; the only way it could incriminate you is if its yours.  So what's truly incriminating is not the evidence on the disk; it's the fact that the computer is yours.  If you know the password, then the computer is yours, and thus the incriminating evidence (if it exists) incriminates you.  If you don't know the password, then the computer must not be yours.

    Or in short:  What the fifth protects you from is not the contents of the hard drive, but from having to disclose whether the hard drive is yours.  The defendant, in this case, already admitted that it was his hard drive, so there's nothing left for the fifth to cover; it's not a "get out of jail free from evidence that incriminates you card", and it doesn't protect you from, as in this case, evidence that exists outside your mind.

    This shows up repeatedly in fifth amendment/password cases.  So in a Wisconsin case:

    I conclude that Feldman's act of production, which would necessarily require his using a password of some type to decrypt the storage device, would be tantamount to telling the government something it does not already know with `reasonably particularity'--namely, that Feldman has personal access to and control over the encrypted storage devices.

    Or from In Re Grand Jury Subpoena Duces Tecum:

    what's more, nothing in the record illustrates that the Government knew with reasonable particularity that Doe was even capable of accessing the encrypted portions of the drives

    Or as you put it:

    It would reveal the password(s).  Something they don't know.  And the contents of computers.  Which they don't know.

    Actually, the data itself isn't covered by the fifth, just the passwords.  And they aren't asking for the passwords; they're asking for him to decrypt the data.  Which would reveal that he knows the passwords, but he already told them that.

    TL;DR:  Ask for a damn lawyer.


    Cody's introductory paragraphs (5.00 / 2) (#10)
    by Peter G on Fri Jun 27, 2014 at 11:42:21 AM EST
    contain many errors concerning the scope and enforcement of the Fifth Amendment privilege.  Most important is repetition of the common but mistaken idea that only the guilty can properly invoke the privilege.  Absolutely wrong.

    It's a fancy argument ... (none / 0) (#4)
    by Robot Porter on Fri Jun 27, 2014 at 10:40:32 AM EST
    but it's not persuasive.

    As the article itself notes, other courts (even within the state!) have ruled differently.


    The article says (none / 0) (#5)
    by jbindc on Fri Jun 27, 2014 at 10:45:26 AM EST
    "Other courts" - the 11th Circuit and a federal court in Wisconsin. Which don't really mean much in a Massachussetts case based on Massachussetts law.

    I don't see any reference to "other courts" within the state, and it really wouldn't matter anyway, since this ruling came out of the highest court in MA.


    Also (none / 0) (#6)
    by jbindc on Fri Jun 27, 2014 at 10:49:44 AM EST
    Read the opinion -especially the section on how the Fifth Amendment does not cover "foregone conclusions".

    I don't have to ... (none / 0) (#7)
    by Robot Porter on Fri Jun 27, 2014 at 11:08:41 AM EST
    I've read the fifth amendment.

    Plus, this is light years from settled law.  The first case on this matter was only seven years ago.

    State supreme courts have been wrong on many issues for much, much longer than that.  SCOTUS too!  The better part of a century in the case of segregation.


    Well (none / 0) (#8)
    by jbindc on Fri Jun 27, 2014 at 11:14:07 AM EST
    Since you're such a constitutional scholar, you will realize that just reading the "plain text" does not really give you a good answer in all situations.  There is a little thing called "nuance".

    My only surprise is that the state can't find someone who can decrypt this because I doubt some lawyer using an off-the-shelf package plan can be that smart.  Probably the state doesn't have the resources.


    I understand the nuance ... (5.00 / 1) (#9)
    by Robot Porter on Fri Jun 27, 2014 at 11:42:16 AM EST
    I don't agree with it.  Courts have agreed with my position.  

    SCOTUS hasn't spoken on this specific matter.

    So there we are.

    In the past, you might have supported Jim Crow Laws.  And you would have all manner of case law and fancy arguments behind you.

    But there were people who would have said you were wrong.  That the "nuance" you argued was not persuasive to them.  And eventually ... after a loooooong time ... the courts agreed.

    I don't think there's much nuance.  He's being forced to reveal a "word" that could incriminate him.  Without that they're SOL.


    The problem is (none / 0) (#11)
    by jbindc on Fri Jun 27, 2014 at 11:58:28 AM EST
    with the defendant and his statements.  He was advised of his rights to remain silent, and not only did he choose not to avail himself of those rights, he went further by telling the police that: 1) he had more than one computer at home, 2) they were encrypted and that he could de-crypt them, and 3) that no one else would be able to de-crypt them. He also told the police about his business dealings with the company being investigated.

    During his postarrest interview with State police Trooper Patrick M. Johnson, the defendant stated that he had performed real estate work for Baylor Holdings, which he understood to be a financial services company. He explained that his communications with this company, which purportedly was owned by Russian individuals, were highly encrypted because, according to the defendant, "[that] is how Russians do business." The defendant informed Trooper Johnson that he had more than one computer at his home, that the program for communicating with Baylor Holdings was installed on a laptop, and that "[e]verything is encrypted and no one is going to get to it." The defendant acknowledged that he was able to perform decryption. Further, and most significantly, the defendant said that because of encryption, the police were "not going to get to any of [his] computers," thereby implying that all of them were encrypted.

    Kinda seems like he already incriminated himself. So, while I may or may not agree with this outcome on a macro level, in this case, the fault lies squarely on the defendant.


    I understand all that ... (none / 0) (#12)
    by Robot Porter on Fri Jun 27, 2014 at 04:53:01 PM EST
    it doesn't seem important.  Until he gives them a "word" they are just big hunks of metal and plastic.  And they could no more incriminate him than a pair of the Judge's flip-flops.

    Contempt of Court? (none / 0) (#13)
    by squeaky on Fri Jun 27, 2014 at 05:08:47 PM EST
    Can't they make him go to jail until he coughs up the word?  

    He should have kept his mouth shut..


    The (none / 0) (#15)
    by Mikado Cat on Sat Jun 28, 2014 at 12:32:16 AM EST
    court could hold him in contempt, Russians might hold him under water. I would stick with the contempt.

    Gang Rape? (none / 0) (#17)
    by squeaky on Sat Jun 28, 2014 at 10:20:38 AM EST
    I think that there are all sorts of bonuses in the US prison system that come with a jail stint.

    res ipsa loquator (none / 0) (#14)
    by thomas rogan on Fri Jun 27, 2014 at 10:14:47 PM EST
    He isn't testifying against himself.  The material contained on the computer presumably would speak for itself.  He can plead the fifth all he wants on the witness stand.

    We can't he (none / 0) (#16)
    by Mikado Cat on Sat Jun 28, 2014 at 12:33:49 AM EST
    just say, golly, I've forgotten the passwords. Make a few tries and say, huh, didn't work, I have no idea why.