The state via a grand jury request sought the password to defendant’s iPhone. Production of the password would implicate self-incrimination concerns, but, here, it’s a foregone conclusion that it’s his phone and there are no self-incrimination concerns. Civil contempt affirmed In the Matter of a Grand Jury Investigation, 2017 Mass. App. LEXIS 158 (Dec. 11, 2017):
The foregone conclusion exception has applied when the government independently and with specificity established the authenticity, existence, and possession of the compelled information. Gelfgatt, supra at 522. In Gelfgatt, the Commonwealth possessed “detailed evidence” of fraudulent mortgages linked to a financial services company. 468 Mass. at 523. When the defendant was arrested, he admitted to the police that he worked for the financial services company and had communications with the company contained on his home computers, which he had encrypted and only he could decrypt. Id. at 517. Although the court acknowledged that by entering an encryption key into his computers, “the defendant implicitly would be acknowledging that he has ownership and control of the computers and their contents[,] … facts that would be relevant to the Commonwealth’s case,” id. at 522, the court found that “the factual statements that would be conveyed” were a “foregone conclusion,” id. at 523, because “the defendant’s act of decryption would not communicate facts … beyond what the defendant already … admitted to investigators.” Id. at 519.
Here, the Commonwealth contends that the act of the petitioner entering the correct PIN code, in light of the evidence already known to the Commonwealth, communicates only evidence that is merely a foregone conclusion and “adds little or nothing to the sum total of the Government’s information.” Id. at 522, quoting from Fisher, supra. We agree. To meet its burden under this doctrine, the Commonwealth was required to demonstrate knowledge of the petitioner’s ownership and control of the iPhone and its contents, as well as “knowledge of the fact of [PIN code protection], and knowledge of the [existence of the PIN code].” Id. at 524. The Commonwealth was not required to show that it knew the specific content of the iPhone, but it did need to demonstrate knowledge of the existence and the location of the content. Id. at 523, citing 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”).
Here, the Commonwealth demonstrated sufficient knowledge to show that the factual statements that the petitioner’s act of entering his PIN code would convey are foregone conclusions. As summarized in the grand jury materials submitted to the judge under seal, the Commonwealth already knew that the iPhone contained files that were relevant to its investigation based, in part, on information provided by the petitioner. In addition, the Commonwealth knew that a PIN code was necessary to access the iPhone, that the petitioner possessed and controlled the iPhone, and that the petitioner knows the PIN code and is able to enter it. Accordingly, the Commonwealth established independently and with specificity the authenticity, existence, and possession of the compelled information.
Thus, the order does not require the petitioner to communicate information that would fall within constitutional self-incrimination protection. The affidavit in support of the search warrant application established that the Commonwealth had probable cause to believe that the iPhone contained evidence of the crimes that are the subject of the grand jury investigation. The order simply allows execution of that warrant. See ibid., quoting from Fisher, 425 U.S. at 411 (“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’”).