In prior posts, I examined how the 5th Amendment privilege against self-incrimination can, and cannot, apply to the
act of producing evidence to a grand jury or a court. This post examines a recent decision from a
Massachusetts court that addresses this issue, i.e., whether the government could
compel a suspect to decrypt the contents of certain computers. Commonwealth
v. Gelfgatt, 2014 WL 2853731 (Supreme Judicial Court of Massachusetts 2014).
The court begins its opinion by explaining that this case
arose on May 5, 2010, when a
State grand jury returned indictments
charging [Leon Gelfgatt] with seventeen counts of forgery of a document,
Massachusetts General Laws c. 267, § 1; seventeen counts of uttering a forged instrument,
Massachusetts General Laws c. 267, § 5; and three counts of attempting to
commit . . . larceny by false pretenses of the property of
another, Massachusetts General Laws c. 274, § 6.
The charges arose from allegations that
[Gelfgatt], through his use of computers, conducted a sophisticated scheme of
diverting to himself funds that were intended to be used to pay off large
mortgage loans on residential properties. On November 21, 2011, the
Commonwealth filed in the Superior Court a `Motion to Compel the Defendant to
Enter His Password into Encryption Software He Placed on Various Digital Media
Storage Devices that Are Now in the Custody of the Commonwealth’. . . . The
Commonwealth also filed a motion to report a question of law to the Appeals
Court prior to trial pursuant to Massachusetts Rules of Criminal Procedure Rule 34. . . .
The question concerned the lawfulness
of compelling [Gelfgatt] to privately enter an encryption key into computers
seized from him by the Commonwealth. Following
a hearing on January 18, 2012, a judge denied the Commonwealth's motion to
compel decryption, but he reported the following question of law:
`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
5th Amendment to the United States Constitution and Article Twelve of the
Massachusetts Declaration of Rights?’
Commonwealth v.
Gelfgatt, supra. In a footnote, the court explains that the “parties
treat as synonymous the terms `encryption key’ and `password’ to encryption
software. For the sake of simplicity, we shall do the same.” Commonwealth
v. Gelfgatt, supra.
The court then explans how Gelfgatt came to be charged:
Beginning in 2009, [Gelfgatt], who is
an attorney, allegedly orchestrated a scheme to acquire for himself funds that
were intended to be used to pay off home mortgage loans. According to the
Commonwealth, [he] identified high-end properties that were listed in an online
database as `under agreement.’ He would research each one at the applicable
registry of deeds to determine whether there was a mortgage on the
property. If there was, [Gelfgatt], purportedly using a computer, would
forge an assignment of the mortgage to either `Puren Ventures, Inc.’ (Puren
Ventures) or `Baylor Holdings, Ltd.’ (Baylor Holdings). He then would record
the forged assignment at the applicable registry of deeds and mail a notice to
the seller stating that the mortgage on the property had been assigned to one of
these sham companies, which he had set up.
[Gelfgatt] fostered the illusion that
Puren Ventures and Baylor Holdings were actual companies by giving each one
Internet-based telephone and facsimile numbers. When a closing attorney would
contact one of these companies to request a statement documenting the sum
necessary to pay off the reassigned mortgage, the attorney would be instructed
to send the request to the facsimile number [Gelfgatt] had created. Next, [he]
would request an actual payoff figure from the true mortgage holder.
[Gelfgatt] would transmit this
information by Internet facsimile number to the closing attorney, doing so
under the guise of the sham company. [He] would instruct the closing attorney
to send the payoff check to a Boston address where [Gelfgatt] once had practiced
law. Although ultimately unsuccessful, [he] purportedly created seventeen
fraudulent assignments of mortgages, totaling over $13 million. According to
the Commonwealth, [Gelfgatt] relied heavily on the use of computers to conceal
his identity and perpetrate his alleged scheme.
Commonwealth v.
Gelfgatt, supra.
The Supreme Judicial Court then explained how the decryption
issue arose:
On December 17, 2009, State police
troopers arrested [Gelfgatt] 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 in Marblehead and for his vehicle.
During the search of [Gelfgatt’s]
residence, troopers observed several computers that were powered on, and they
photographed the computer screens. [Appearing
on the computer screens were the following phrases that were visible as
headings or icons: `K:*Leon Documents*My Scans’; `Erasing Report’; `Erased
area’; `Attorney Leon I. Gelfgatt’; `TrueCrypt’; and `DriveCrypt Plus Pack.’] The
troopers seized from [his] residence two desktop computers, one laptop
computer, and various other devices capable of storing electronic data.
They also seized one smaller `netbook’
computer from [Gelfgatt’s] vehicle. Computer forensic examiners were able to
view several documents and `bookmarks’ to Web sites that were located on an
external hard drive. [These documents included what appeared to be unsigned releases for a mortgage encombuering (Gelfgatt's] residenital property in Marblehead. Computer forensic examiners also were able to see an image file that appeared to contain the seal for an Arizona notary public. The `bookmarks' included a Web site where Puren Ventures was advertised for sale, and a Web site offering anonymous wire transfers.]
However, all of the data on the four
computers were encrypted with `DriveCrypt Plus’ software.
Commonwealth v.
Gelfgatt, supra. The text in brackets above appears in
footnotes in the opinion. I inserted the
text for each footnote after the text that had that note.
The court then explains that, "[a]ccording to the Commonwealth," the
encryption software on the computers is virtually impossible to circumvent. Its
manufacturer touts the fact that it does not contain a `back door’ that would
allow access to data by anyone other than the authorized user. Thus, the
Commonwealth states, the files on the four computers cannot be accessed and
viewed unless the authorized user first enters the correct password to unlock
the encryption. The Commonwealth believes that evidence of [Gelfgatt’s]
purported criminal activities is located on these computers.
Commonwealth v.
Gelfgatt, supra.
The Supreme Judicial Court also notes that on the day he was
arrested, Gelfgatt was
interviewed by law enforcement
officials after having been advised of the Miranda rights. In response to questioning, he said he had more than one computer in
his home. [Gelfgatt] also informed the officials that `[e]verything is
encrypted and no one is going to get to it.’ . . . [To] decrypt the
information, he would have to `start the program.’
[Gelfgatt] said he used encryption for
privacy purposes, and that when law enforcement officials asked him about the
type of encryption used, they essentially were asking for [his] help in putting
him in jail. [Gelfgatt] reiterated that he was able to decrypt the
computers, but he refused to divulge any further information that would enable
a forensic search.
Commonwealth v.
Gelfgatt, supra.
On November 21, 2011, the Commonwealth of Massachusetts
filed a motion to compel
decryption pursuant to Massachusetts Rules of Criminal Procedure Rule 14(a)(2). . . . It sought an order compelling [Gelfgatt’s]
compliance with a `protocol’ the Commonwealth had established to obtain
decrypted digital data. . . .
[T]he Commonwealth stated that compelling [him] 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 [Gelfgatt’s]
rights under . . . the 5h Amendment to the United States Constitution. . . .
Commonwealth v.
Gelfgatt, supra.
The trial judge the motion because he/she found, “one the
one hand,” that 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 [Gelfgatt’s]
help in accessing potentially incriminating evidence the Commonwealth had
seized.
In the judge's view, there was merit to
[Gelfgatt’s] contention that production of a password to decrypt the computers
constituted an admission of knowledge, ownership, and control. Further, the
judge continued, the scenario presented in this case was far different from
compelling a defendant to provide a voice exemplar, a handwriting exemplar, or
a blood sample, all of which are deemed to be nontestimonial. The judge said
that [Gelfgatt’s] refusal to disclose the encryption key during his interview
with law enforcement officials could be construed as an invocation of his rights
under the 5th Amendment. . . .
Commonwealth v.
Gelfgatt, supra.
The Supreme Judicial Court began its analysis of the issue
in the case by noting that the
5th Amendment provides that `[n]o
person . . . shall be compelled in any criminal case to be a witness against
himself.’ . . . It is well established
that `the 5th 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. U.S., 425 U.S. 391 (1976). See U.S. v. Hubbell, 530 U.S. 27 (2000) (`The
word “witness'” in the constitutional text limits the relevant category of
compelled incriminating communications to those that are “testimonial” in
character). . . .
Commonwealth v.
Gelfgatt, supra.
It then noted that the Commonwealth of Massachusetts, in its
motion to compel,
is seeking to compel [Gelfgatt] to
decrypt `all’ of the `digital storage devices that were seized from him.’ Given that the Commonwealth believes that
those devices contain information about [Gelfgatt’s] alleged mortgage payoff
scheme, the entry of the encryption key or password presumably would be
incriminating because `it would furnish the Government with a link in the chain
of evidence leading to [the defendant's] indictment.. Doe v. U.S., 487U.S. 201 (1988), and accompanying text. The issue on which this case turns is
whether [his] act of decrypting the computers is a testimonial communication
that triggers 5th Amendment protection.
Commonwealth v.
Gelfgatt, supra.
The court then explained that while the 5th
Amendment privilege “typically” applies to
oral or written statements that are
deemed to be testimonial, . . . the act of producing evidence demanded
by the government may have `communicative aspects’ that would render the 5th
Amendment applicable. Fisher v. U.S. supra; U.S. v. Hubbell, supra. . .
. Whether an act of production is
testimonial depends on whether the government compels the individual to
disclose `the contents of his own mind’ to . . . communicate some statement of
fact. U.S. v. Hubbell, supra. .
. .
[T]he act of complying with the
government's demand could constitute a testimonial communication where it is .
. . a tacit admission to the existence of the evidence demanded, the possession
or control of such evidence by the individual, and the authenticity of the
evidence. See U.S. v. Hubbell, supra.
. . . The determination whether an act of producing evidence in response
to a governmental demand is sufficiently testimonial that it renders the 5th
Amendment applicable `depend[s] on the facts and circumstances of [each]
particular case[ ].’ Fisher v. U.S.,
supra. . . .
[N]ot all acts of production have
communicative aspects such that they will be deemed testimonial. See U.S. v. Hubbell, supra. . . . [T]he 5th
Amendment privilege is not triggered where the government seeks to compel an
individual to be the source of real or physical evidence by, for example,
furnishing a blood sample, . . . ; producing a voice exemplar; . .
. standing in a lineup, . . . ; [or] providing a handwriting exemplar.
. . . [It] is not implicated in these
circumstances because the individual is `not required “to disclose any
knowledge he might have,” or “to speak his guilt.”’ Doe v. U.S., 487 U.S. 201 (1988). . . .
Commonwealth v.
Gelfgatt, supra.
The Supreme Judicial Court then explained that in this case,
Gelfgatt’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 5th Amendment protection. By such action, [he] 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, [his] 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 [Gelfgatt’s] act of production loses
its testimonial character because the information that would be disclosed by
the defendant is a `foregone conclusion.’
Commonwealth v.
Gelfgatt, supra. It then explained the foregone conclusion
principle
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 v. U.S., supra. For [it] 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. Fisher v. U.S., supra.
[W]hen the government produces evidence
to satisfy the `foregone conclusion principle, `no constitutional rights are
touched. The question is not of testimony but of surrender.’ See Fisher v. U.S., supra (quoting Matter
of Harris, 221 U.S. 274 (1911). . . . In essence, . . . the act of production
does not compel a defendant to be a witness against himself.
Commonwealth v.
Gelfgatt, supra.
So the court found that, “based on [its] review of the
record “ in the case, the
factual statements that would be
conveyed by [Gelgfatt’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 5th Amendment. The
investigation by the corruption, fraud, and computer crime division of the
Attorney General's office uncovered detailed evidence that at least two
mortgage assignments to Baylor Holdings were fraudulent.
During his postarrest interview with
State police Trooper Patrick M. Johnson, [Gelfgatt] stated that he had
performed real estate work for Baylor Holdings, which he understood to be a
financial services company. He explained his communications with this company,
which purportedly was owned by Russian individuals, were highly encrypted because,
according to [Gelfgatt], `[that] is how Russians do business.’ [He] informed
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.’
[Gelfgatt] acknowledged that he was able to perform
decryption. Further, and most significantly, [he] 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.
Commonwealth v.
Gelfgatt, supra.
Finally, the court explained that
[w]hen
considering the entirety of [Gelfgatt’s] interview with Johnson, it is apparent
that [he] 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 [Gelfgatt] 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.’
The Commonwealth's motion to compel
decryption does not violate [Gelfgatt’s] rights under the 5th Amendment because
[he] is only telling the government what it already knows.
Commonwealth v.
Gelfgatt, supra. The court therefore reversed the trial
judge’s denying the Commonwealth’s motion to compel decryption. Commonwealth
v. Gelfgatt, supra.
You can, if you are interested, read more about the trial
judge’s opinion, and the case, in the news story you can find here. And
according to this news story, Gelfgatt’s lawyer is going to try to get the U.S.
Supreme Court to review the case.
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