* Compelling decryption passwords from Defendants*
Facts: Gelfgatt (an attorney) used his computer to conduct a sophisticated scheme of diverting to himself funds that were intended to be used to pay off large mortgage loans on residential properties. He purportedly duped one side into believing that his sham company had acquired the mortgage on the home, and all money was to be paid to that company. On December 17, 2009, State police troopers arrested the defendant immediately after he retrieved what he believed to be over $1.3 million in payoff funds from two real estate closings. They also executed search warrants for his residence and for his vehicle. During the search of the defendant’s residence, troopers observed several computers that were powered on, and they photographed the computer screens. The troopers seized from the defendant’s residence two desktop computers, one laptop computer, and various other devices capable of storing electronic data. They also seized one smaller “netbook” computer from the defendant’s vehicle. Computer forensic examiners were able to view several documents and “bookmarks” to Web sites that were located on an external hard drive. However, all of the data on the four computers were encrypted with “DriveCrypt Plus” software.
During his post arrest interview, Gelfgatt admitted to having more than one computer, “everything is encrypted, and nobody is going to get it.”
Procedural Posture: The commonwealth moved to compel decryption (by having Gelfgatt type in the encryption password(s).
As grounds for the motion, the Commonwealth stated that compelling the defendant to enter the key to encryption software on various digital media storage devices that had been seized by the Commonwealth was essential to the discovery of “material” or “significant” evidence relating to the defendant’s purported criminal conduct. The Commonwealth further stated that its protocol would not violate the defendant’s rights under either the Fifth Amendment to the United States Constitution or art. 12 of the Massachusetts Declaration of Rights The Judge denied the motion on the one hand, the Commonwealth merely was requesting a sequence of numbers and characters that would enable it to access information on the computers, but that, on the other hand, the Commonwealth was asking for the defendant’s help in accessing potentially incriminating evidence that the Common- wealth had seized. In the judge’s view, there was merit to the defendant’s contention that production of a password to decrypt the computers constituted an admission of knowledge, ownership, and control. He also said that Gelfgatt’s refusal to give the code during his interview could be construed as an invocation of his 5th Amendment rights.
Issue: Can the defendant be compelled pursuant to the Commonwealth’s proposed protocol to provide his key to seized encrypted digital evidence despite the rights and protections provided by the Fifth Amendment to the United States Constitution and Article Twelve of the Massachusetts Declaration of Rights?
Law: 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” (emphasis in original). Fisher v. United States, 425 U.S. 391, 408, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).
Analysis: The Commonwealth contends that compelling the defendant to enter his encryption key into the computers pursuant to the Commonwealth’s protocol would not violate the defendant’s Fifth Amendment right against self-incrimination. In the Commonwealth’s view, the defendant’s act of decryption would not communicate facts of a testimonial nature to the government beyond what the defendant already has admitted to investigators. As such, the Commonwealth continues, the defendant’s act of decryption does not trigger Fifth Amendment protection. The issue on which this case turns is whether the defendant’s act of decrypting the computers is a testimonial communication that triggers Fifth Amendment protection. Whether an act of production is testimonial depends on whether the government compels the individual to disclose “the contents of his own mind” to explicitly or implicitly communicate some statement of fact. United States v. Hubbell, 530 U.S. 27, 34, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000).
Here, the defendant’s act of entering an encryption key in the computers seized by the Commonwealth would appear, at first blush, to be a testimonial communication that triggers Fifth Amendment protection. By such action, the defendant implicitly would be acknowledging that he has ownership and control of the computers and their contents. This is not simply the production of real or physical evidence like a blood sample or a handwriting exemplar. Rather, the defendant’s act of entering the encryption key would be a communication of his knowledge about particular facts that would be relevant to the Commonwealth’s case. Our analysis, however, does not end here. We must further determine whether the defendant’s act of production loses its testimonial character because the information that would be disclosed by the defend- ant is a “foregone conclusion.”
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. For the exception to apply, the government must establish its knowledge of (1) the existence of the evidence demanded; (2) the possession or control of that evidence by the defendant; and (3) the authenticity of the evidence. See Id. at 410–413; United States v. Bright, 596 F.3d 683, 692 (9th Cir.2010).
Holding: Based on our review of the record, we conclude that the factual statements that would be conveyed by the defendant’s act of entering an encryption key in the computers are “foregone conclusions” and, therefore, the act of decryption is not a testimonial communication that is protected by the Fifth Amendment. When considering the entirety of the defendant’s interview with Trooper Johnson, it is apparent that the defendant was engaged in real estate transactions involving Baylor Holdings, that he used his computers to allegedly communicate with its purported owners, that the information on all of his computers pertaining to these transactions was encrypted, and that he had the ability to decrypt the files and documents. The facts that would be conveyed by the defendant through his act of decryption—his ownership and control of the computers and their contents, knowledge of the fact of encryption, and knowledge of the encryption key—already are known to the government and, thus, are a “foregone conclusion.”
Specifically, We answer the reported question, “Yes, where the defendant’s compelled decryption would not communicate facts of a testimonial nature to the Commonwealth beyond what the defendant already had admitted to investigators.”