Where the defendant has already admitted that the computers are his, he can be compelled to provide the encryption password, and the Fifth Amendment is not violated. Commonwealth v. Gelfgatt, 468 Mass. 512, 11 N.E.3d 605 (2014):
The Commonwealth contends that compelling the defendant to enter his encryption key into the computers pursuant to the Commonwealth’s protocol would not violate the defendant’s Fifth Amendment right against self-incrimination. In the Commonwealth’s view, the defendant’s act of decryption would not communicate facts of a testimonial nature to the government beyond what the defendant already has admitted to investigators. As such, the Commonwealth continues, the defendant’s act of decryption does not trigger Fifth Amendment protection. We agree.
. . .Here, the defendant’s act of entering an encryption key in the computers seized by the Commonwealth would appear, at first blush, to be a testimonial communication that triggers Fifth Amendment protection. By such action, the defendant implicitly would be acknowledging that he has ownership and control of the computers and their contents. This is not simply the production of real or physical evidence like a blood sample or a handwriting exemplar. Rather, the defendant’s act of entering the encryption key would be a communication of his knowledge about particular facts that would be relevant to the Commonwealth’s case. Our analysis, however, does not end here. We must further determine whether the defendant’s act of production loses its testimonial character because the information that would be disclosed by the defendant is a “foregone conclusion.”
The “foregone conclusion” exception to the Fifth Amendment privilege against self-incrimination provides that an act of production does not involve testimonial communication where the facts conveyed already are known to the government, such that the individual “adds little or nothing to the sum total of the Government’s information.” Fisher, 425 U.S. at 411. For the exception to apply, the government must establish its knowledge of (1) the existence of the evidence demanded; (2) the possession or control of that evidence by the defendant; and (3) the authenticity of the evidence. See id. at 410-413; United States v. Bright, 596 F.3d 683, 692 (9th Cir. 2010). See also Hubbell, 530 U.S. at 40-41, 44-45 (government did not satisfy “foregone conclusion” exception where no showing of prior knowledge of existence or whereabouts of documents ultimately produced by respondent to subpoena); United States v. Doe, 465 U.S. at 613-614 & nn.11-13 (act of producing business records involved testimonial self-incrimination where government did not show that existence, possession, and authenticity of records were “foregone conclusion”). In those instances when the government produces evidence to satisfy the “foregone conclusion” exception, “no constitutional rights are touched. The question is not of testimony but of surrender.” Fisher, supra at 411, quoting Matter of Harris, 221 U.S. 274, 279 (1911). See, e.g., United States v. Sideman & Bancroft, LLP, 704 F.3d 1197, 1202-1205 (9th Cir. 2013) (quantum of information possessed by Internal Revenue Service regarding existence and possession of summonsed documents, together with evidence of their authenticity, satisfied “foregone conclusion” exception to Fifth Amendment privilege against self-incrimination); United States v. Fricosu, 841 F. Supp. 2d 1232, 1237 (D. Colo. 2012) (Fifth Amendment not implicated by requiring production of unencrypted contents of computer where government knew of existence and location of files, although not specific content of documents, and knew of defendant’s custody or control of computer); State v. Jancsek, 302 Or. 270, 287-288 (1986) (compelled production of letter not protected by Fifth Amendment privilege where existence, contents, and authenticity of letter already known to police). In essence, under the “foregone conclusion” exception to the Fifth Amendment privilege, the act of production does not compel a defendant to be a witness against himself.
Based on our review of the record, we conclude that the factual statements that would be conveyed by the defendant’s act of entering an encryption key in the computers are “foregone conclusions” and, therefore, the act of decryption is not a testimonial communication that is protected by the Fifth Amendment. The investigation by the corruption, fraud, and computer crime division of the Attorney General’s office uncovered detailed evidence that at least two mortgage assignments to Baylor Holdings were fraudulent. During his postarrest interview with State police Trooper Patrick M. Johnson, the defendant stated that he had performed real estate work for Baylor Holdings, which he understood to be a financial services company. He explained that his communications with this company, which purportedly was owned by Russian individuals, were highly encrypted because, according to the defendant, “[that] is how Russians do business.” The defendant informed Trooper Johnson that he had more than one computer at his home, that the program for communicating with Baylor Holdings was installed on a laptop, and that “[e]verything is encrypted and no one is going to get to it.” The defendant acknowledged that he was able to perform decryption. Further, and most significantly, the defendant said that because of encryption, the police were “not going to get to any of [his] computers,” thereby implying that all of them were encrypted.
When considering the entirety of the defendant’s interview with Trooper Johnson, it is apparent that the defendant was engaged in real estate transactions involving Baylor Holdings, that he used his computers to allegedly communicate with its purported owners, that the information on all of his computers pertaining to these transactions was encrypted, and that he had the ability to decrypt the files and documents. The facts that would be conveyed by the defendant through his act of decryption — 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.” The Commonwealth’s motion to compel decryption does not violate the defendant’s rights under the Fifth Amendment because the defendant is only telling the government what it already knows.
