Judge Says Decision "The Death Knell" for Protection Against Self-Incrimination In Digital Age

On March 6, 2019, the Massachusetts Supreme Judicial Court issued a significant decision concerning the constitutional rights of the criminally accused. In Commonwealth v. Jones (No. SJC-12564), the SJC held that when the Commonwealth seeks an order pursuant to the SJC’s 2014 decision in Commonwealth v. Gelfgatt compelling a defendant to decrypt an electronic device by entering a password, art. 12 of the Massachusetts Declaration of Rights (which like the Fifth Amendment to the United States Constitution creates a privilege against self-incrimination), the Commonwealth must “prove that the defendant knows the password beyond a reasonable doubt for the foregone conclusion exception to apply.” The “foregone conclusion” exception, set out in Gelfgatt, stands for the proposition that if the core information is already known to the Commonwealth it is a “foregone conclusion” and would not violate the privilege against self-incrimination.

Thus, as the concurring Justice noted, the decision “sounds the death knell for a constitutional protection against compelled self-incrimination in the digital age” because now merely demonstrating that “the accused knows the device’s passcode” is sufficient for the government to seek an order requiring the defendant to “provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device.”

Demonstrating that an accused knows the passcode for a device found on their person would presumably be exceedingly easy for the government to do. The mere fact of possession is most of the proof needed because it’s not ordinarily the case that people have possession of mobile devices that they cannot access.

In applying this clarification in the Jones case, the SJC further held that the Commonwealth met its burden in the case and also that a judge acting on a renewed Gelfgatt motion may consider additional information without first finding that it was not known or not reasonably available to the Commonwealth at the time the earlier Gelfgatt motion was filed.

In Jones, the defendant was indicted for trafficking a person for sexual servitude, G. L. c. 265, § 50 (a), and deriving support from the earnings of a prostitute, G. L. c. 272, § 7. When it arrested him, the Commonwealth also seized a cell phone from the defendant. Its investigation led the Commonwealth to develop information leading it to believe that the contents of the cell phone included material and inculpatory evidence. A trial court granted a search warrant to search the cell phone. But the Commonwealth couldn’t access the cell phone’s contents because they are encrypted.

So the Commonwealth sought to compel the defendant to decrypt the cell phone by filing a motion for an order requiring him to produce a personal identification number access code. The main issue for the trial court was whether compelling the defendant to enter the password to the cell phone would violate his privilege against self-incrimination guaranteed by both the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights.

The trial court denied the Commonwealth’s motion, concluding that the Commonwealth had not proved that the defendant’s knowledge of the password was a foregone conclusion under the Fifth Amendment. A renewed motion also failed. So the Commonwealth sought appellate review and the SJC was asked to answer three questions:

“1. What is the burden of proof that the Commonwealth bears on a motion like this in order to establish a ‘foregone conclusion,’ as that term is used in Commonwealth v. Gelfgatt, 468 Mass. 512, 520-526 (2014)?

“2. Did the Commonwealth meet its burden of proof in this case?

“3. When a judge denies a ‘Gelfgatt’ motion filed by the Commonwealth and the Commonwealth thereafter renews its motion and provides additional supporting information that it had not provided in support of the motion initially, is a judge acting on the renewed motion first required to find that the additional information was not known or reasonably available to the Commonwealth when the earlier motion was filed before considering the additional information?”

The SJC ultimately reversed the trial court’s denial of the Commonwealth’s renewed Gelfgatt motion, and remanded the case to the Superior Court for entry of an order compelling the defendant to enter the password into the cell phone at issue.

The privilege against self-incrimination applies when the “accused is compelled to make a testimonial communication that is incriminating.” But testimonial communications “are not limited to spoken words or written statements” because “the act of producing information demanded by the government may have communicative aspects that would render the Fifth Amendment and art. 12 applicable.” The Commonwealth may, however, compel testimonial acts of production without violating a defendant’s rights where the “facts conveyed [by the act] already are known to the government, such that the individual ‘adds little or nothing to the sum total of the Government’s information.’” Gelfgatt, 468 Mass. at 522. In such circumstances, “because the facts implicitly disclosed through the act of production are already known to the Commonwealth, they are considered a “foregone conclusion” and do not force a defendant to incriminate himself or herself.”

The SJC concluded that in “the context of compelled decryption, the only fact conveyed by compelling a defendant to enter the password to an encrypted electronic device is that the defendant knows the password, and can therefore access the device.” So the state has to “establish that a defendant knows the password to decrypt an electronic device before his or her knowledge of the password can be deemed a foregone conclusion under the Fifth Amendment or art. 12.”

On the first reported question concerning the burden of proof, the SJC concluded that art. 12 “requires the Commonwealth to prove that a defendant knows the password to decrypt an electronic device beyond a reasonable doubt for the foregone conclusion exception to apply.”

On the second question, application to the Jones case, the concluded that the record before the motion judge by the Commonwealth in its initial Gelfgatt motion and its renewed motion contained sufficient evidence for the Commonwealth to meet its evidentiary burden. One factor the SJC pointed to was the fact that the phone was in the defendant’s possession at the time he was arrested by police—he had it in his front pants pocket. But other information also supported the conclusion that the defendant knew the password, including the fact the LG phone subscriber had listed a “backup” telephone number. Police records pertaining to this backup telephone number showed that it belonged to a “Dennis Jones” with the same Social Security number and date of birth as the defendant.

On the third question concerning the consideration of additional information, the SJC held that “a judge acting on a renewed Gelfgatt motion may consider additional information without first finding that it was not known or not reasonably available at the time of the first filing.”

In a well-reasoned concurring opinion, Justice Lenk, wrote separately to state that “unlike the court, I think that compelled decryption of a cellular telephone or comparable device implicates more than just its passcode; what the government seeks is access to the files on the device, which the government believes will aid in inculpating the defendant. Given that the foregone conclusion doctrine is a narrow exception to the constitutional privilege against self-incrimination, the government may compel a defendant’s decryption of such a device only when it can show that any testimonial aspect involved in that act of production is already known to the government. In other words, the government must demonstrate, beyond a reasonable doubt, that the accused knows the passcode to the device and that the government already knows, with reasonable particularity, the existence and location of relevant, incriminating evidence it expects to find on that device.” But she concluded that the government in Jones met that criteria. She also nonetheless observed that “The court’s decision today sounds the death knell for a constitutional protection against compelled self-incrimination in the digital age. After today’s decision, before the government may order an individual to provide it with unencrypted access to a trove of potential incriminating and highly personal data on an electronic device, all that the government must demonstrate is that the accused knows the device’s passcode.”