Introduction
As the U.S. legal system is struggling to adapt to the digital world,1See, e.g., Eunice Park, Traffic Ticket Reasonable, Cell Phone Search Not: Applying the Search- Incident-To-Arrest Exception to the Cell Phone as “Hybrid,” 60 DRAKE L. REV. 429, 440–41 (2012) (discussing the disconnect between the law and technology as it relates to search warrants and cell phones). more and more Americans own and use electronic devices.2See Mobile Fact Sheet, PEW RES. CENTER (Apr. 7, 2021), https://perma.cc/9CKY-XNHP . Today, ninety-six percent of American adults own cell phones, with individuals looking at their phones an average of fifty-two times per day.3Id.; 2018 Global Mobile Consumer Survey: US Edition, DELOITTE 3, https://perma.cc/MAU3-96ZY (last visited Oct. 16, 2021) (discussing cell phone use by Americans, with around ninety percent or more of eighteen to fifty-four year olds owning a cell phone). The cell phone is an omnipresent device with the ability to carry “millions of pages of text, thousands of pictures, or hundreds of videos” inside a person’s pocket.4Riley v. California, 573 U.S. 373, 375 (2014). Despite an increased preference to use cell phones to manage daily activities, eighty-three percent of American citizens are “very” or “fairly” concerned about the storage of their personal data.52018 Global Mobile Consumer Survey: US Edition, supra note 3, at 8. This concern is well-founded as the contents of electronic devices are not afforded adequate protection under the U.S. Constitution.6See Orin S. Kerr, Compelled Decryption and the Privilege Against Self-Incrimination, 97 TEX. L. REV. 767, 769 (2019) (“Courts have disagreed on the correct answer, as have scholars, with both offering a range of standards for how the Fifth Amendment privilege should apply.”).
The disconnect between the law and the digital world is demonstrated by the failure of the courts to satisfactorily apply the Fifth Amendment right against self-incrimination as it pertains to warranted searches of a defendant’s electronic device.7See Kerr, supra note 6. Compare United States v. Apple MacPro Comput., 851 F.3d 238, 247 (3d Cir. 2017) (holding that the privilege against self-incrimination does not apply if the government can describe the incriminating files that are on the device with reasonable particularity), with State v. Stahl, 206 So. 3d 124, 136 (Fla. Dist. Ct. App. 2016) (holding that the privilege against self-incrimination does not apply when the government can show the defendant has the ability to unlock the device ). The immense storage capacity of electronic devices, particularly smartphones, intensifies the need to protect the contents on the device.8 See Riley, 573 U.S. at 393 (concluding that the storage capacity of cell phones “implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse”). For example, an Apple iPhone can store more than 512 gigabytes of data, depending on the model.9Compare iPhone Models, APPLE, https://perma.cc/4A4V-DA2D (last visited Oct 16, 2021) (showing the storage capacity of iPhones ranges from 16 gigabytes for the iPhone 6 to up to 1 terabyte (equivalent to 1024 gigabytes) for the newest models). This is equivalent to millions of pages of personal information “about who we are, what we know, and what we have done.”10 Orin S. Kerr, Foreword: Accounting for Technological Change, 36 HARV. J.L. & PUB. POL’Y 403, 404–05 (2013). Phones are no longer just a means of communication; they create a digital footprint that details nearly every aspect of an individual’s life.11See generally Kerr, supra note 10, at 405.
To search an electronic device without violating the Fourth Amendment, the government is required to obtain a search warrant.12See U.S. CONST. amend. IV (recognizing the right to be protected against unreasonable searches and seizures, unless the government gets a search warrant based on probable cause that particularly describes the place to be searched, and the persons or things to be seized); Riley, 573 U.S. at 403. But what happens when the government is unable to execute a search warrant because the device is encrypted?13See, e.g., Commonwealth v. Jones, 481 Mass. 540, 541 (2019) (“ The search warrant has yet to be executed, however, as the Commonwealth was—and currently remains—unable to access the cell phone’s contents because they are encrypted. The contents can only be decrypted with the entry of a password.”). Do we force a defendant who has raised a Fifth Amendment right against self-incrimination to assist the government’s case by unlocking the device?14See, e.g., id. at 561 (compelling the defendant who raised the Fifth Amendment privilege to enter the password into the cell phone at issue). While the authors of the Constitution and the Bill of Rights could never imagine today’s convenient world of technology, it does not stand to reason that the information found on an electronic device is any less worthy of constitutional protection than physical documents.15 See generally id. If anything, the capability of electronic devices to store vast quantities of information points to a greater need for legal protection.16See Riley, 573 U.S. at 398 (discussing how the privacy interests of electronic devices “dwarf” those in physical form).
This Comment illustrates that the Supreme Judicial Court (“SJC”) failed to follow precedent in Commonwealth v. Jones by incorrectly concluding that the only fact conveyed by compelling a defendant to unlock an electronic device is that the defendant knows the password to the device. This Comment further argues that this conclusion violates an individual’s Fifth Amendment right against self-incrimination. Part I of this Comment details the right against self-incrimination as a fundamental right under the U.S. Constitution. Part II discusses Commonwealth v. Jones, focusing on the analytic framework created by the SJC. Part III argues that the knowledge of the password is not the only testimony conveyed by entering the password to an electronic device. Part IV proposes a new standard to compel a defendant to decrypt an electronic device without violating the Fifth Amendment.
I. Background
A. The Right Against Self-Incrimination Guaranteed to Citizens of Massachusetts
The Massachusetts Constitution guarantees the right against self- incrimination in Article 12 of the Declaration of Rights.17MASS. CONST. art. XII. This right derives further protection under Massachusetts case law (as outlined by the Massachusetts Guide to Evidence),18SJC ADVISORY COMM. ON MASS. EVIDENCE LAW, MASSACHUSETTS GUIDE TO EVIDENCE § 511 (2021), https://perma.cc/3GVC-59CR [hereinafter MASS. GUIDE TO EVID.] and, most importantly, under the Fifth Amendment of the U.S. Constitution.19U.S. CONST. amend. V. To properly assert the right against self-incrimination under the U.S. Constitution, an individual compelled to testify or produce evidence must be subject to criminal liability,20See In re Enforcement of Subpoena, 435 Mass. 1, 1–3 (2001). the evidence must have a testimonial aspect, and the state must compel the production. 21Commonwealth v. Conkey, 430 Mass. 139, 142–43 (1999).
B. An Exception to the Right Against Self-Incrimination
The Massachusetts Guide to Evidence lists six exceptions to a defendant’s right against self-incrimination.22MASS. GUIDE TO EVID., supra note 18, § 511(c). The exception of most relevance here is the “foregone conclusion” doctrine.23MASS. GUIDE TO EVID., supra note 18, § 511(c)(6). The “foregone conclusion” doctrine deems that “an otherwise testimonial act of production is not testimonial if the government establishes that, at the time it sought the compelled production, it already knew of that which would explicitly or implicitly be conveyed by the production.”24Commonwealth v. Gelfgatt, 468 Mass. 512, 531 (2014) (Lenk, J., dissenting). Simply put, if the government can demonstrate it had knowledge of the compelled testimony, that testimony is not protected by the Fifth Amendment.25Id.
The U.S. Supreme Court introduced the “foregone conclusion” exception in Fisher v. United States.26425 U.S. 391, 410–11 (1976). The defendants in Fisher invoked their Fifth Amendment right against self-incrimination after the government compelled them to produce certain tax return documents.27Id. at 395. The Court reasoned that, by producing evidence in compliance with a subpoena, the defendants implicitly acknowledged the existence and control of the compelled documents.28Id. at 410.
The Court concluded that the tax documents were not protected by the Fifth Amendment because the government demonstrated it already knew of the existence and location of these tax documents.29 Id. at 411. The Court explained that the government was “in no way relying on the ‘truth-telling’ of the [defendant] to prove the existence of or his access to the documents.”30Id. Compelled production would not contribute to the sum total of the government’s information; thus, the government sufficiently demonstrated that the existence and location of the papers were a “foregone conclusion.”31Id.at 410. The Court further stated that “however incriminating the contents . . . might be, the act of producing them the only thing which the [defendant] is compelled to dowould not itself involve testimonial self-incrimination.”32Fisher, 425 U.S. at 410–11. Consequently, the “foregone conclusion” doctrine allows the government to compel the production of incriminating testimony without violating the Fifth Amendment.33Jesse Coulon, Comment, Privacy, Screened Out: Analyzing the Threat to Individual Privacy Rights and Fifth Amendment Protections in State v. Stahl, 59 B.C. L. REV. E.-SUPPLEMENT 225, 233 (2018).
C. The Compelled Decryption of an Electronic Device May Be Considered Testimonial Communication
While the “foregone conclusion” exception originated in the context of the compelled production of documents,34 See Fisher, 425 U.S. at 391. the SJC expanded its application to the compelled production of passwords to encrypted electronic devices in Commonwealth v. Gelfgatt.35468 Mass. 512, 512 (2014). The SJC found that the “factual statements that would be conveyed by entering an encryption key in the computers are ‘foregone conclusions,’” and therefore held that “decryption is not a testimonial communication that is protected by the Fifth Amendment”; thus, the Court did not permit a self-incrimination privilege for the compelled decryption of electronic devices.36 Id. at 523.
The defendant in Gelfgatt was arrested for orchestrating a fraudulent mortgage scheme, ultimately scamming people out of more than $13 million.37Id. at 515. The police obtained four of the defendant’s computers, and the Commonwealth filed a motion to compel the defendant to decrypt the computers by entering a password.38Id. at 516-17. See generally Commonwealth v. Jones, 481 Mass. 540, 542 (2019) (defining a motion to compel decryption of an electronic device as a “Gelfgatt motion”). The defendant later refused to comply with the motion, claiming that compliance would force the defendant to incriminate himself.39Gelfgatt, 468 Mass. at 517.
The Commonwealth asserted that the computers were “virtually impossible to circumvent”—therefore, the motion was necessary to discover material evidence relating to the defendant’s purported mortgage scheme.40Id. at 517–18. The Commonwealth further raised a “foregone conclusion” argument, contending that “decryption would not communicate facts of a testimonial nature to the [government] beyond what the defendant already had admitted to investigators.”41Id. at 514. The Gelfgatt Court concluded that the defendant would implicitly be acknowledging ownership and control of the computers and their contents by decrypting the four computers seized by the Commonwealth;42Id. at 522. thus, the defendant’s compelled act of decryption appeared to be testimonial communication afforded protection under the Fifth Amendment.43Id.
Once the Court determined that the Fifth Amendment might protect the compelled testimony, it then analyzed whether the “foregone conclusion” doctrine stripped the act of decryption of its “testimonial character” (and thus its constitutional protection).44Id. The Court stated that the doctrine requires the government to demonstrate its knowledge of (1) the existence of the evidence demanded; (2) the defendant’s possession or control of such evidence; and (3) the authenticity of the evidence.45Gelfgatt, 468 Mass. at 522. In Gelfgatt, the Commonwealth showed that the defendant claimed ownership and control of the computers during his interrogation, acknowledged that the computers were encrypted, and admitted he knew the encryption key.46Id. at 523–24. Therefore, the factual statements conveyed to the Commonwealth from the defendant’s decryption would be a “foregone conclusion” because they would merely reveal information the government already possessed.47 Id. at 523. Accordingly, the SJC agreed with the Commonwealth that the “foregone conclusion” exception applied, concluding that compelling a defendant to unlock an encrypted device did not violate the Fifth Amendment if the decryption did not relate testimonial facts to the government beyond what the defendant had already revealed to investigators.48Id. at 514.
II. Commonwealth v. Jones
A. Factual Background
The defendant, Dennis Jones (“Jones”), was ultimately convicted by a grand jury for trafficking a person for sexual servitude,49Commonwealth v. Jones, 481 Mass. 540, 541 (2019). in violation of Mass. Gen. Laws. ch. 265, § 50(a),50MASS. GEN. LAWS ANN. ch. 265, § 50(a) (West 2012) (making it a crime for someone to knowingly entice another person to engage in commercial sexual activity). and deriving support from the earnings of a prostitute,51 Jones, 481 Mass. at 541. in violation of Mass. Gen. Laws. ch. 272, § 7.52MASS. GEN. LAWS ANN. ch. 272, § 7 (West 2021) (making it a crime for someone who, knowing a person is a prostitute, lives, derives support, or shares, “in whole or in part, from the earnings or proceeds of his prostitution, from moneys loaned, advanced to or charged against him” by any manager or inmate of a place where prostitution is practiced or allowed). The police arrested Jones shortly after his former girlfriend, Sara,53 Jones, 481 Mass. at 543 n.4 (noting that Sara is a pseudonym). reported that Jones stole her purse and, upon the officers’ arrival, revealed Jones was operating a human trafficking ring.54Id. at 542. Sara told the police that she met Jones through an online dating website a few weeks prior to the arrest.55 Id. at 543. Sara was initially under the impression that the two were dating, but Jones quickly persuaded her to work as a prostitute in exchange for housing.56Id.
The police then began investigating Jones, linking him to an LG brand cell phone (“LG phone”).57Id. Sara informed the police that Jones primarily used the LG phone to communicate with her, and a subsequent inspection of Sara’s cell phone confirmed several prostitution related messages between the two phones.58Id. Sara explained that both Jones and a female associate regularly used the LG phone to conduct their prostitution business.59Jones, 481 Mass. at 543–44 (explaining that Jones responded to text messages, while the female associate answered phone calls). The police further discovered a website advertising Sara as an escort that listed the LG phone number as the principal point of contact for prospective customers.60 Id. at 544. The police recovered two phones from Jones upon his arrest, ultimately finding the LG phone in Jones’s pants pocket.61Id.
B. Procedural History
The police were granted a warrant to search the LG phone during the investigation, but the phone’s contents were encrypted, making them inaccessible.62Id. The Commonwealth then filed a Gelfgatt motion to compel Jones to unlock the LG phone by entering in its password, causing Jones to raise his Fifth Amendment right against self-incrimination.63Id. at 545. The Commonwealth argued that compelling Jones to enter the password did not implicate the Fifth Amendment because “the act itself would not reveal any information that the Commonwealth did not already know.”64Id. A judge disagreed and denied the Gelfgatt motion, concluding that the Commonwealth did not demonstrate with “reasonable particularity” that Jones’s knowledge of the password was a “foregone conclusion.”65Jones, 481 Mass. at 545. A renewed Gelfgatt motion with additional evidence was similarly denied several months later.66Id. at 556–57 (noting that the Commonwealth offered additional evidence that Jones possessed the phone at the time of his arrest: Jones listed the LG phone number as his own during a previous, unrelated arrest; the backup telephone number registered for the LG phone belongs to Jones; and the LG phone has been in the same location as another cell phone belonging to Jones).
The Commonwealth thereupon filed for relief under Mass. Gen. Laws. ch. 211, § 3,67 MASS. GEN. LAWS ANN. ch. 211, § 3 (West 2012). and the case was reported by the single justice to the SJC to address three specific issues.68Jones, 481 Mass. at 542. First, the Court had to determine the necessary burden of proof that the Commonwealth bears on a Gelfgatt motion in order to establish a “foregone conclusion.”69Id. Second, it had to determine whether the Commonwealth met that burden in this case.70Id. Third, the SJC had to determine whether a judge, before considering any additional information included in a renewed Gelfgatt motion, must initially find that the additional information was not known or reasonably available to the Commonwealth when the first motion was filed.71Id.
C. The SJC’s Analysis
Before addressing the three reported issues, the SJC created an analytic framework to establish when an individual can invoke the right against self- incrimination in response to a Gelfgatt motion.72Id. at 547–49. The Fifth Amendment applies when the government compels an individual to produce evidence that constitutes an incriminating testimonial communication.73Id. at 545. Following Gelfgatt, a court looks to “whether the government compels the individual to disclose the contents of his [or her] own mind to explicitly or implicitly communicate some statement of fact” in order to determine whether an act of production is testimonial.74 Jones, 481 Mass. at 546 (quoting Commonwealth v. Gelfgatt, 468 Mass. 512, 520 (2014)). The SJC concluded that unlocking an electronic device says nothing about the contents of the device, nor does it produce any evidence for the Commonwealth beyond the fact that the defendant knows the password to the device.75Id. at 547. Put simply, the SJC determined that compelling the defendant to enter the password into a computer could be a testimonial act of production, unless the facts conveyed by the defendant through this act of decryption were already known to the Commonwealth, and thus were a “foregone conclusion.”76See id. Therefore, for the “foregone conclusion” exception to apply to a Gelfgatt motion, the Commonwealth need only demonstrate that the defendant knew the password to the LG phone.77Id. at 543.
The SJC determined that the Commonwealth must prove a defendant knows the password beyond a reasonable doubt,78Id. concluding that the Commonwealth satisfied its burden in this case.79Id. at 557–58 (reasoning that the additional evidence in the renewed Gelfgatt motion coupled with Sara’s statements demonstrated Jones’s knowledge of the password beyond a reasonable doubt). The SJC further concluded that a judge acting on a renewed Gelfgatt motion may consider additional information without initially requiring the Commonwealth to show that the information was not known or reasonably available when the earlier motion was filed.80Jones, 481 Mass. at 558. Accordingly, the SJC found that the motion judge abused his discretion by failing to consider the Commonwealth’s renewed Gelfgatt motion and its additional information.81 Id. at 558–59. The SJC reversed the motion judge’s denial of the renewed Gelfgatt motion and remanded the case to the Superior Court to enter a Gelfgatt motion compelling Jones to unlock the LG phone.82Id. at 561.
D. Concurring Opinion
In a concurrence, Justice Lenk agreed with the outcome of the case but believed that entering the password to the phone revealed more than mere knowledge of the password.83See id. at 561 (Lenk, J., concurring). Accordingly, the government should have been required to show, with reasonable particularity, that the defendant knew the password and that the government knew of the existence and location of incriminating evidence on the device.84Id. at 565–66 (Lenk, J., concurring).
ANALYSIS
III. Mistaken Interpretation of Testimonial Communication
A. The Password Is Not the Only Testimonial Communication An act of production is testimonial for purposes of the Fifth Amendment if “the government compels the individual to disclose the contents of his [or her] own mind to explicitly or implicitly communicate some statement of fact.”85Id. at 546 (quoting Commonwealth v. Gelfgatt, 468 Mass. 512, 520 (2014)). The SJC stated that the only testimony conveyed in the context of compelled decryption is that “the defendant knows the password . . . . The entry would convey no information about the contents of the LG phone.”86Jones, 481 Mass. at 548 n.10; see also Kerr, supra note 6 at 769–70 (arguing that the only testimony conveyed is that the individual who unlocked the device knows the password). Although the SJC is correct that entering the password discloses the fact that the defendant knows the password, this Comment will explain that the password is not the only testimony conveyed.87See infra Part III(A)(1)–(2). Moreover, the conclusion that the contents of the phone would not be conveyed by requiring decryption cannot coincide with the definition of testimonial communication provided by the SJC.88See infra Part III(A)(2).
1. If Unlocking the Phone Does Not Convey its Contents, Then Why Does the Commonwealth Want the Password?
The testimony conveyed by entering a password into a phone is not merely the password but also includes additional statements of fact that this decryption explicitly or implicitly communicates.89See Laurent Sacharoff, Unlocking the Fifth Amendment: Passwords and Encrypted Devices, 87 FORDHAM L. REV. 203, 225, 229–30 (2018). The SJC itself concluded that the “Commonwealth must be certain that the compelled act of production will not implicitly convey facts not otherwise known to the Commonwealth.”90Jones, 481 Mass. at 555. However, the SJC only used this principle to justify raising the burden of proof to beyond a reasonable doubt.91See id. Had it applied this reasoning during its “foregone conclusion” analysis, the SJC would have realized that the compelled production of a password implicitly conveys evidence that the Commonwealth did not already know.92 See id.; Sacharoff, supra note 89, at 231.
By entering a password to a device, an individual also conveys control of the device, and therefore knowingly admits possession of the incriminating documents found on it.93 Sacharoff, supra note 89, at 229. Producing the password accords the implicit communication of these documents with protection under the Fifth Amendment because they are “reflective of the knowledge, understanding, and thoughts” of the defendant.94Jones, 481 Mass. at 546. Moreover, the moment the defendant unlocks the device, it is more likely that the material found on it belongs to the defendant and no one else.95See Sacharoff, supra note 89, at 231 (“The moment the suspect opens [the smartphone], in this context, makes it more likely the child pornography is his and not someone else’s.”). Since the Commonwealth did not compel Jones to produce specific, relevant evidence on the LG phone,96 Jones, 481 Mass. at 548 n.10. it did not demonstrate that the testimony conveyed by Jones entering the password was a “foregone conclusion.”97See United States v. Doe, 670 F.3d 1335, 1347 (11th Cir. 2012) (holding that the government must show it possessed knowledge as to the “files on the [encrypted] hard drives at the time it attempted to compel production”); Sacharoff, supra note 89, at 229.
By filing a Gelfgatt motion, the government essentially requires the defendant to “enter his password to the device and walk away,” giving the government virtually unlimited access to the defendant’s “entire digital life.”98Sacharoff, supra note 89, at 208; see Commonwealth v. Gelfgatt, 468 Mass. 512, 517–18 (2014). As it stands now, this unlimited access could allow the government to probe around for evidence of new crimes.99See Sacharoff, supra note 89, at 208. According to the SJC’s conclusion, the government can force a defendant to enter the password in any case in which it can prove the defendant owns the device.100See Sacharoff, supra note 89, at 208. Jones, 481 Mass. at 557. This conclusion permits the government to search a defendant’s entire digital life for evidence of new crimes supposedly without violating the Fifth Amendment.101See id. at 557–58. This goes against a fundamental principle of the Fifth Amendment that the government must “shoulder the entire load” in building its case against the defendant.102United States v. Balsys, 524 U.S. 666, 690 (1998) (quoting Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52, 55 (1964)). Therefore, the password should not be the only focus of analysis when applying the “foregone conclusion” doctrine. 103See United States v. Apple MacPro Comput., 851 F.3d 238, 247–48 (3d Cir. 2017); Eunjoo Seo v. State, 148 N.E.3d 952, 957–58 (Ind. 2020) (finding that, for the “foregone conclusion” to apply, the state must show that (1) the suspect knows the password to the phone; (2) the files on the device exist; and (3) the suspect possessed those files).
The Gelfgatt Court stated that entering a password to a device implicitly admits ownership and control of the device and its contents, as well as communicates “knowledge about particular facts that would be relevant to the Commonwealth’s case.”104Commonwealth v. Gelfgatt, 468 Mass. 512, 522 (2014). In Gelfgatt, the Commonwealth listed the exact documents in its search warrant, negating any need to consider what would happen if the Commonwealth did not know which facts conveyed would be relevant to its case.105Id. at 520 (stating that the Commonwealth “believes that those devices contain information about the defendant’s alleged mortgage payoff scheme”). This is distinguishable from Jones where the Commonwealth did not know what relevant evidence it would encounter once Jones entered the password.106 See Brief of the Appellee at 9, Commonwealth v. Jones, 481 Mass. 540 (2019) (No. SJC- 12564) (showing that the Commonwealth’s search warrant was to identify the user of the phone and not to locate certain incriminating evidence). The Commonwealth merely wanted to conduct a search of “the entire phone, all contacts, calendar entries, files, photographs, videos, caller-ids, text messages, voice mails, email messages and the contents of all of the above to identify the ‘regular user of the phone.’”107Id. (emphasis added).
In defense of its Gelfgatt motion, the Commonwealth argued that password entry was necessary to execute the search warrant to identify the user of the LG phone.108See id.; Commonwealth v. Jones, 481 Mass. 540, 544 (2019). The Commonwealth claimed that the Gelfgatt motion did not violate the Fifth Amendment because, as Jones was a regular user of the phone, it was a “foregone conclusion” that he knew the password.109See Jones, 481 Mass. at 556–57. To put it another way, the Commonwealth wanted to search the LG phone to determine who controlled it, but claimed that compelling Jones to unlock the LG phone would not violate the Fifth Amendment because the Commonwealth knew that he controlled it.110Brief of the Appellee, supra note 106, at 9. Actual application of the Commonwealth’s illogical reasoning renders the search warrant completely unnecessary because the Commonwealth claimed it already knew Jones was the “regular user of the phone.”111See Jones, 481 Mass. at 542, 556–57; see also Brief of the Appellee, supra note 106, at 9. The success of this circular reasoning further supports the argument that greater protection is needed because it subjects the device to a “fishing expedition,” which the Fifth Amendment aims to limit.112See Sacharoff, supra note 89, at 208.
2. An English Lesson
The SJC’s conclusion that the password is the only testimony conveyed runs afoul with the Court’s own definition of testimonial communication.113 See Jones, 481 Mass. at 546. The SJC defined an act of production as testimonial if “the government compels the individual to disclose the contents of his [or her] own mind to explicitly or implicitly communicate some statement of fact.”114Id. (quoting Commonwealth v. Gelfgatt, 468 Mass. 512, 520 (2014)). When a sentence is structured as “to [blank] to [blank],” the reader cannot simply chop it off halfway and ignore the second half of the sentence.115See To, In Order To, So As To, ENG. GRAMMAR (Jan. 21, 2014), https://perma.cc/UK3M-Q9NT. The second half of the sentence is the precise purpose of the proposition.116See Infinitives of Purposes, GRAMMAR LAB, https://perma.cc/Z3LP-5PC7 (last visited Oct. 16, 2021) (“We use infinitives of purpose to say why someone does something.”). Take, for example, the following statement: “I gave ten dollars to Amy to bake cookies.”117 Cf. id. (“They are going to the grocery store to buy some milk.”). The speaker of this sentence gave Amy ten dollars in order to bake cookies.118See id. Applying this same reasoning to testimonial communication, it is apparent that the defendant disclosed the evidence in order to communicate some statement of fact.119See id. (“We use infinitives of purpose to say why someone does something.”)
In the context of compelled decryption, the evidence disclosed is the password itself because that is literally what the government compels.120See, e.g., Commonwealth v. Jones, 481 Mass. 540, 547 n.9 (2019) (stating that the Commonwealth “requested that the defendant ‘produce’ or ‘provide’ the password to the LG phone”). This disclosure must further “explicitly or implicitly communicate some statement of fact.”121 Id. at 546 (quoting Commonwealth v. Gelfgatt, 468 Mass. 512, 520 (2014)). The statement of fact cannot be the password itself, because that is what the defendant disclosed.122Id. at 561 (compelling defendant to enter the password to the phone). It stands to reason that the statements of facts implicitly communicated are the actual contents of the phone. 123 See Sacharoff, supra note 89, at 232 (arguing that, in the context of encryption, “the government must show it can authenticate the files independently of the defendant’s act of entering the password”).
Consider the following analogy: the act of entering a password to a decrypted phone in order to help the government execute a search warrant is comparable to the act of producing documents in compliance with a subpoena.124 Sacharoff, supra note 89, at 229. To force a defendant to produce subpoenaed documents, the Court does not ask the government to demonstrate that the defendant is physically capable of doing so.125Sacharoff, supra note 89, at 237. Rather, the government is required to show that the documents exist and are in the defendant’s possession.126Sacharoff, supra note 89, at 236. Applying this same principle to compelled decryption, the government must show that the underlying documents on the device exist, not that the defendant knows the password and therefore is capable of entering it.127See Sacharoff, supra note 89, at 236. In the context of compelled decryption, the password itself is not produced; instead, the act of entering the password produces the documents on the electronic device.128Sacharoff, supra note 89, at 237. These contents produced must be given Fifth Amendment protection. 129See Sacharoff, supra note 89, at 236–37 (“If the government cannot identify any documents on the device, the suspect’s compelled act—entering the password—will communicate to the government the person’s possession of the documents and their authenticity, facts the government did not know previously.”).
B. Conclusion Alone Prohibits Assertion of the Fifth Amendment
The Fifth Amendment only applies when the defendant “is compelled to make a testimonial communication that is incriminating.”130Fisher v. United States, 425 U.S. 391, 408 (1976). The SJC concluded that the only testimony conveyed by compelling Jones to enter the password is that he knows the password.131Commonwealth v. Jones, 481 Mass. 540, 547 (2019). This conclusion itself prohibits assertion of the Fifth Amendment because a password alone is not incriminating.132 See United States v. Pearson, No. 1:04-CR-340, 2006 U.S. Dist. LEXIS 32982, at *54 (N.D.N.Y. May 24, 2006) (discussing the government’s argument that the password itself is not incriminating); United States v. Mitchell, 76 M.J. 413, 421 (C.A.A.F. 2017) (Ryan, J., dissenting) (reasoning that even if unlocking an iPhone “could constitute a testimonial statement, the entry of a passcode . . . does not constitute an incriminating statement”); Phillip R. Reitinger, Compelled Production of Plaintext and Keys, 1996 U. CHI. LEGAL F. 171, 197. In other words, while the act of entering the password is sufficiently testimonial, the password itself is not incriminating.133 Reitinger, supra note 132, at 197–98 (finding that a password is not compelled testimonial evidence because its contents are not privileged; rather, using the password to unlock the incriminating encrypted document makes the act of producing the password testimonial and incriminating); see Mitchell, 76 M.J. at 421 (Ryan, J., dissenting). If the SJC is correct that the password is the only testimony conveyed, then entering the password does not satisfy the requirements to invoke the Fifth Amendment.134See United States v. Castro, 129 F.3d 226, 229 (1st Cir. 1998) (noting that the defendant must “open himself to prosecution” by testifying in order to invoke the privilege against self- incrimination); In re Enforcement of a Subpoena, 435 Mass. 1, 3 (2001) (finding that the compelled evidence must subject the individual to criminal liability in order to assert the Fifth Amendment).
Despite concluding that the only evidence at issue is the password, the SJC created an analytic framework requiring the Commonwealth to prove that the defendant’s knowledge of the password to the device is a “foregone conclusion.”135Jones, 481 Mass. at 547–48. The SJC essentially concluded that the Fifth Amendment did not apply, and created an analytic framework requiring the Commonwealth to show then that the Fifth Amendment did not apply.136Id. Applying a “foregone conclusion” analysis, an exception to the Fifth Amendment, to a non-incriminating testimonial communication illustrates that the SJC misinterpreted the definition of testimonial communication.137 See generally Fern L. Kletter, Annotation, Construction and Application of “Foregone Conclusion” Exception to Fifth Amendment Privilege Against Self-Incrimination, 25 A.L.R. FED. 3D Art. 10 (Westlaw through Oct. 16, 2021). To logically defend the creation of this framework, the SJC must concede either that the password is incriminating or that the password conveys testimonial facts that are incriminating.138See Cuadra v. State, 715 S.W.2d 723, 725 (Tex. Crim. App. 1986) (“Only incriminating,testimonial communications are privileged.”). The former does not coincide with the accepted fact that a password alone is not incriminating,139 See United States v. Suarez, Army Misc. 20170366, 2017 CCA LEXIS 631, at *8 n.3 (A. Ct. Crim. App. Sep. 27, 2017) (stating that the government maintains a passcode is not incriminating); Reitinger, supra note 132, at 188–89 (Noting that a password will not be incriminating unless the government used “that fact to show possession or control over other encrypted documents not involved in the act of production, such as other encrypted documents the government had previously seized”). whereas the latter derives considerable support from the growing body of literature regarding compelled decryption of electronic devices.140See, e.g., Bryan H. Choi, The Privilege Against Cellphone Incrimination, 97 TEX. L. REV. ONLINE 73, 74 (2019); Aloni Cohen & Sunoo Park, Compelled decryption and the Fifth Amendment: Exploring the Technical Boundaries, 32 HARV. J.L. & TECH. 169, 174 (2018); Sacharoff, supra note 89, at 229. Since the password alone cannot trigger the Fifth Amendment, it stands to reason that the Commonwealth compelled incriminating testimony other than the password. 141See generally Cuadra, 715 S.W.2d at 725.
C. The SJC Ignored the Purpose Behind the “Foregone Conclusion” Doctrine
The Fifth Amendment only protects compelled testimonial communications that are incriminating.142Id. The government can negate this constitutional protection by demonstrating that the facts conveyed by the compelled act are a “foregone conclusion.”143Fisher v. United States, 425 U.S. 391, 411 (1976). The U.S. Supreme Court in Fisher stated that compelling the defendant to admit the existence and possession of certain tax papers was a “foregone conclusion” because the “taxpayer adds little or nothing to the sum total of the Government’s information by conceding that he in fact has the papers.”144Id. When applying the “foregone conclusion” doctrine to the compelled decryption of electronic devices, the SJC narrowly interpreted the Fisher Court’s ruling to mean that “the facts conveyed” only applied to the password.145Commonwealth v. Jones, 481 Mass. 540, 546–47 (2019). The SJC ultimately concluded that the Commonwealth proved beyond a reasonable doubt that Jones had knowledge of the password to the LG phone.146Id. at 557. Therefore, the knowledge of the password was a “foregone conclusion,” and Jones was not entitled to the protections of the Fifth Amendment.147Id. at 558.
By ignoring the line that the facts conveyed must “add little or nothing to the sum total of the government’s information,” the SJC completely changed the meaning and ignored the purpose of the “foregone conclusion” doctrine.148Fisher, 425 U.S. at 411. The U.S. Supreme Court implemented the “foregone conclusion” doctrine to apply in scenarios where the compelled evidence does not contribute to the government’s case.149See id. However, the SJC’s determination that the foregone conclusion only applies to the defendant’s knowledge of the password created an avenue for the government to gain access to a significant amount of new and incriminating information that would, in fact, help build the government’s case.150See Sacharoff, supra note 89, at 208.
IV. Proposed Resolution
This issue deserves attention from the U.S. Supreme Court in that a federal standard is necessary to safeguard this fundamental right.151See generally U.S. CONST. amend. IV. To invoke the “foregone conclusion” doctrine, the government must show with reasonable particularity it already knew of the subpoenaed materials at the time of the request.152 United States v. Doe, 670 F.3d 1335, 1345–46 (11th Cir. 2012) (“[U]nder the ‘foregone conclusion’ doctrine, an act of production is not testimonial . . . if the Government can show with ‘reasonable particularity’ that, at the time it sought to compel the act of production, it already knew of the materials, thereby making any testimonial aspect a ‘foregone conclusion.’”). Therefore, a Gelfgatt motion should require the Commonwealth to show with reasonable particularity that the existence and location of incriminating documents on a device are a “foregone conclusion.” 153Id. at 1346. If the government is not required to show that a device contains particular facts relevant to its case, then we are essentially giving the government access to go blindly hunting in hopes of finding incriminating evidence to build its case.154Cf. United States v. Fox, 721 F.2d 32, 38 (2d Cir. 1983) (reasoning that the government’s “broad-sweeping summons” required the defendant to become the primary informant against himself, which is essentially a “fishing expedition”). On top of that, we are forcing the hunted individual to hold the government’s hand and guide the way.155See id. This goes against the very purpose of the Fifth Amendment: to protect individuals from being forced to provide testimony that is then used against them by the government. 156See Miranda v. Arizona, 384 U.S. 436, 477–78 (1966) (stating that the purpose of the Fifth Amendment is to protect defendants from making incriminating statements as a result of governmental compulsion).
This Comment proposes that, if the government attempts to execute a search warrant to a device containing incriminating information by compelling a defendant to decrypt it and that defendant subsequently raises a Fifth Amendment right against self-incrimination, the government must initially demonstrate there are no other reasonable means available to unlock the device.157See Erin M. Sales, Note, The “Biometric Revolution”: An Erosion of the Fifth Amendment Privilege to Be Free from Self-Incrimination, 69 U. MIAMI L. REV. 193, 208 (2014). Additionally, the government must show with reasonable particularity: (1) the location and existence of incriminating evidence on the device; (2) the government’s knowledge of the defendant’s control and ownership of the device; and (3) the government’s knowledge that the defendant knows the password.158See Doe, 670 F.3d at 1345–46; see also Commonwealth v. Gelfgatt, 468 Mass. 512, 521–22 (2014). The defendant should then decrypt only the incriminating evidence that the government proved to exist with reasonable particularity.159Sacharoff, supra note 89, at 208.
To be clear, this proposed resolution does not require the government to state in its search warrant the files it wants to search with reasonable particularity.160 See supra text accompanying notes 157–59. However, if the defendant subsequently raises a Fifth Amendment right against self-incrimination, then the government must show with reasonable particularity its knowledge of the files to rebut this constitutional protection.161 See supra text accompanying notes 157–59. While it may be simpler to hold that the Fourth Amendment will “somehow limit or trump the Fifth Amendment whenever there is a valid search warrant,” these two rights should not be isolated from one another.162Commonwealth v. Jones, 481 Mass. 540, 564 n.1 (2019) (Lenk, J., concurring). Rather, they must work together in order to consistently and adequately protect the rights of an individual.163See id.
Conclusion
Fundamental constitutional rights are diminished when the law fails to evolve with technology. An individual has a fundamental constitutional right against compulsory self-incrimination, but the SJC’s holding in Commonwealth v. Jones effectively interred this right in the digital world. The decision to limit the applicability of the “foregone conclusion” doctrine to a defendant’s knowledge of a password is a gross misinterpretation of the law. The U.S. Supreme Court introduced the “foregone conclusion” doctrine to compel incriminating testimony that adds little information to that which the government already possesses. However, the SJC with this decision gives the government virtually limitless access to individuals’ electronic devices without requiring any prior demonstration of the government’s knowledge of incriminating evidence on those devices.
The SJC inaccurately concluded that the act of unlocking a device does not implicitly convey its contents. This determination is both logically unsound and ignores the purpose of legal doctrine. In order for the government to succeed on a Gelfgatt motion, while simultaneously protecting the defendant’s Fifth Amendment right, the government should be required to demonstrate with reasonable particularity the location and existence of incriminating evidence on the device and that the defendant controls the device and knows the password. Once the government demonstrates this, the defendant may then be compelled to decrypt only those files listed with reasonable particularity. Without federal implementation of these safeguards, an individual’s right against self- incrimination in the digital world is essentially worthless.
