Commonwealth v. Gelfgatt

In a 5-2 decision, the Massachusetts high court ruled that it does not violate a defendant’s Fifth Amendment right against self-incrimination to order a criminal suspect to decrypt files found on a seized computer.

The defendant, who was also an attorney, purportedly devised a scheme to defraud  homeowners by funneling mortgage payments made by the homeowners to himself. According to the state, the defendant would forge mortgage assignment documents indicating that the mortgage had been assigned to companies that the defendant had made up. The mortgagor would then pay its mortgage payment to the defendant’s companies, and thus, to the defendant. The defendant created a total of 17 false assignments that totaled $13 million.

The State believed that the defendant heavily relied on the use of computers in his fraudulent scheme to conceal his identity and effectuate the scheme. The defendant was eventually arrested and police executed a search warrant of the defendant’s home whereupon they found four computers encrypted with “DriveCrypt Plus” software. Unfortunately, the encryption software is virtually impossible to circumvent absent access to the password.

Two years after his arrest, the State filed a motion to compel decryption, asking that the Court order the defendant to decrypt the files. The defendant contended that production of a password to decrypt computer files would constitute an admission of ownership, knowledge, and control. The lower court agreed and denied the motion holding that the request would violate the defendant’s Fifth Amendment rights against self-incrimination. The State appealed.

In its recent decision, the Massachusetts Supreme Judicial Court held that  production of a password to decrypt files on a computer would not violate the defendant’s Fifth Amendment rights because the decryption is not a testimonial communication. As iterated by the Court, “It is well established that ‘the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating’” or communicative in nature. Fisher v. United States, 425 U.S. 391, 408 (1976).

The Court acknowledged that the act of decrypting the files would, at first blush, appear to be testimonial in nature because the defendant would be acknowledging that he has ownership and control over the computers and their contents. However, the Court held that the defendant’s production of a password loses its testimonial nature under the “foregone conclusion” exception to the Fifth Amendment.  “The ‘foregone conclusion’ exception to the Fifth Amendment privilege against self-incrimination provides that an act of production does not involve testimonial communication where the facts conveyed already are known to the government, such that the individual ‘adds little or nothing to the sum total of the Government’s information.” Fisher, 425 U.S. at 411.

The Court held that the defendant’s decryption of the files added nothing to what the government already was aware of. As a result, the decryption fell under the foregone conclusion exception and was not communicative or testimonial in character to invoke the defendant’s Fifth Amendment privilege against self-incrimination.

Indeed the rulings in these kinds of cases are split among the circuits and are sure to reach the Supreme Court at some point in the near future. For instance, the district court for the Eastern District of Michigan in 2010 quashed a government subpoena requesting that a defendant provide the government access to his personal computer by handing over his password. The Court ruled that seeking the defendant’s computer password required the defendant to “testify” as to incriminating information, which is protected by the Fifth Amendment.

In a similar case, a federal court judge in the Second Circuit ruled that a defendant accused of downloading child pornography did not have a Fifth Amendment right to keep his personal computer files encrypted. Instead, the Court ruled that because the defendant had already admitted ownership of the laptop and the incriminating photos had been previously viewed, the defendant providing the password was not incriminating.

Read the Court’s opinion here.

    Related Posts

  • Staff Recognized for Departing Employee Investigations - The first issue of Corporate Counsel Business Journal, CCBJ,  includes an interview with our Director of Digital Forensics, Yaniv Schiff, and Solutions Architect, Curtis Collette, on the evolution of departing employee investigations. Departing Employee: When Do Investigations Become Necessary? appeared in the print publication, online edition, and on CCBJ’s In-House Tech website. For Increasing Numbers of Employers, Departing Employee Investigations[...Read More]
  • Chicago Office Food Drive – The Results Are In - QDiscovery’s Chicago Office collected nearly 1,000 containers of food for the local food bank this Holiday Season!  Our office competed with sister offices in Indiana and Connecticut.  Alas, we came in third.  Our sister offices each collected nearly 2,000 containers for their local food banks.  Relatively new to the company-wide food drive, the Forensics Division[...Read More]
  • QDiscovery Forensics Team Develops Award Winning App! - QDiscovery is winner of a 2017 Relativity Innovation Award.  Presented at Relativity Fest, the award celebrates organizations that create apps or integrations that extend the functionality of Relativity’s eDiscovery software.   Our development team created an application that makes the analysis of mobile collections much more manageable.  Relativity users can now produce and review mobile device data[...Read More]
  • Moving and Changing - Acquired by Connecticut-based QDiscovery in 2016, Forensicon’s capabilities multiplied overnight, both in forensics brain power and eDiscovery expertise.  As part of a leading provider of end to end litigation support, moving to larger offices that are more central to the Chicago legal community was inevitable.
  • QDiscovery Named One of the Top 20 Providers of Legal Services! - Leading industry publication, CIO Magazine, has named Forensicon’s parent company, QDiscovery, to it’s  Top 20 Providers of Legal Services.  The annual listing includes 20 companies that are at the forefront of providing legal solutions and impacting the marketplace.  Read the whole article here.  Featured in the publication alongside QDiscovery President, Dave Barrett, is Director of Digital Forensics, Yaniv[...Read More]
Comments are closed.