FACTS

A lawyer accused of printing up phony records, prompting home sellers to pay him instead of the mortgage lenders, encrypted his computers by a product called DriveCrypt Plus.

Police arrested him after he retrieved what he believed to be over $1.3M of good funds from real estate closings. The police showed up at his house with a warrant and the lawyer said “everything is encrypted, no one is going to get to it”. He told the police he was able to unscramble the data to make it readable.

Authorities asked a judge to compel him to enter the key to decrypt the devices they had seized.

ISSUE

Can a judge require an accused to decrypt computer stored information or does the 5th Amendment right against self-incrimination block the courts from demanding this?

RULING

He can be compelled to key in the unlocking passwords giving police access to his computer data.

REASONS

Courts can compel an accused to give a hair or voice sample or stand in a lineup. The government can’t compel a suspect to state thoughts and beliefs in a criminal investigation. They can’t force a suspect “to speak their guilt”.

Since the accused here, admitted these were his computers, he had the key to decrypt them and he’d used them in transactions for a fraud suspect company – he had already revealed the conclusions – ‘foregone conclusions’ the Court called them –that compelled decryption would reveal.

COMMENT

This suspect told the police so much to start with, he’d already cooked his own goose. He had already told the police these were his computers, data on them from the fraud company was on them, they were encrypted and that he had the key.

Find the case by searching google scholar Commonwealth v Gelfatt 462 Mass. 512 (2014)