Massachusetts High Court Permits Compelled Decryption Of Seized Digital Evidence

Today, in Commonwealth v. Gelfgatt, No. SJC-11358 (Mass. June 25, 2014), a divided Massachusetts Supreme Judicial Court held that under certain circumstances, a court may compel a criminal defendant to provide the password to encrypted digital evidence seized by the government without violating either the Fifth Amendment or Article Twelve of the Massachusetts Declaration of Rights. This is an interesting development in an emerging issue in the law that has yet to percolate its way to the United States Supreme Court. Moreover, as critical case evidence continues its migration from the physical to the digital realm, it is an issue we can expect to encounter with growing frequency, and is all but certain to eventually require resolution by the Supreme Court.

The Massachusetts high court's decision hinged on the so-called "foregone conclusion" exception to the Fifth Amendment privilege against self-incrimination, which provides that an "act of production" is not testimonial "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.'" Because the defendant, during his postarrest interview, had admitted his ownership and control over the seized computers, his knowledge of their encrypted files, and his knowledge of the password, the Court concluded that compelling him to provide that password "is only telling the government what it already knows."...