The Fifth Amendment of the United States Constitution protects individual criminal defendants against self-incrimination. However, as the world continues to develop at such a rapid pace and technology becomes synonymous with everyday life, Fifth Amendment protections become clouded. In 2014, the Massachusetts Supreme Judicial Court (“SJC”), in Commonwealth v. Galfgatt, significantly reduced Fifth Amendments protections by failing to extend these rights to the defendant, who was compelled to produce decryption keys encrypting mortgage schemes. Specifically, the SJC lowered the evidentiary burden of reasonable particularity in its forgone conclusion analysis. Additionally, the SJC failed to apply Article 12 of the Massachusetts constitution in its analysis.
In her article, One Step Forward Two Steps Back: The SJC’s Incorrect Decision in Commonwealth v. Gelfgatt Deprives Technology Users of Their Constitutional Rights, author Lauren DeMatteo argues that the SJC incorrectly held that the government’s suspicion was enough proof to sidestep the defendant’s constitutional rights that the evidence was a forgone conclusion. Moreover, in reaching this result, the SJC lowered the government’s evidentiary burden to probable cause, while failing to apply an Article 12 analysis.
In the alternative, DeMatteo argues that the SJC should have followed Eleventh Circuit precedent, holding decryption codes were protected under the Fifth Amendment. The SJC should have also applied Article 12 privileges and held that the decryption key was protected.
The Eleventh Circuit, in In re Grand Jury Subpoena Duces Tecum, held that compelling the defendant to decrypt the contents of his laptop in order to investigate the alleged contents of child pornography, violated his Fifth Amendment rights. Notably, the Eleventh Circuit held that the act of production was testimonial in nature because it required the contents of the defendant’s mind, thus the Fifth Amendment was implicated. Additionally, the Court held that the decryption codes were not forgone conclusions because the government had no knowledge if any files existed or, if they did exist, where they were located. DeMatteo argues that given the similarity in both the facts and legal question, the SJC should have applied the Eleventh Circuit’s analysis. Finally, by allowing access to these files, the SJC disregarded an individual’s Fifth Amendment rights and greatly increased the access to digital files.
DeMatteo’s Article will appear in in Volume 50, of On Remand.
Contributing Editor: Cody Zane