Television crime dramas - and televised congressional testimony - have made "taking the Fifth" part of our collective civic consciousness. The Fifth Amendment to the Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself," and, similarly, Article 12 of the Massachusetts Declaration of Rights states that no person shall "be compelled to accuse, or furnish evidence against himself." But what happens when these 18th Century legal principles confront uniquely 21st Century circumstances?
The Massachusetts Supreme Judicial Court recently considered that question when the Commonwealth sought to compel the alleged perpetrator of a computer-based, fraudulent mortgage payment scheme, to decrypt the potentially incriminating files on his computers. See Commonwealth v. Gelfgatt, 468 Mass. 512, 513-14 (2014). Both Massachusetts and federal constitutional law consider the production of evidence potentially self-incriminating - and therefore protected from government compulsion - if the act of production itself is testimonial: "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." Id, at 521.
In Gelfgatt, the SJC determined that the defendant's act of producing a required decryption key to the state police would be testimonial because he "implicitly would be acknowledging that he has ownership and control of the computers and their contents," therefore making his act of production "a communication of his knowledge about certain facts that would be relevant to the Commonwealth's case." Id, at 522. Nonetheless, neither the Fifth Amendment nor Article 12 provided him any protection.
During a post-arrest interview, the defendant stated that while he could decrypt and access the data on his computers, but "[e]verything is encrypted and no one is going to get to it." Id, at 523-24. Therefore, the state police were "not going to get to any of his computers," which the SJC interpreted to imply that all the seized computers were encrypted. Id, at 524.
"The facts that would be conveyed by the defendant through his act of decryption," the SJC reasoned, "- 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.'" Id. Due to the defendant's prior statements, decryption only would be "telling the government what it already knows," and therefore he could not take shelter behind either the Fifth Amendment or Article 12. See id. In other words, the defendant "took the Fifth" away from himself.
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