Petition for Writ of Certiorari — Dennis Jones, Petitioner v. Massachusetts

Supreme Court briefAug 7, 2019

Ask Donna

What actually matters in this document.

Text

No. _______________________

In the Supreme Court of the United

States

________________________________________________

Dennis Jones,

Petitioner

Commonwealth of Massachusetts,

Respondent

On Petition for a Writ of Certiorari

to the Single Justice for the County of Suffolk

________________________________________________

Petition for a Writ of Certiorari

________________________________________________

JAMES A. REIDY,

Law Office of James A. Reidy

P.O. Box 920365

Needham, MA 02492

617.323.6060

jreidy@jamesareidylaw.com

DAVID NATHANSON,

Counsel of Record,

Wood & Nathanson, LLP

50 Congress Street, Suite 600

Boston, MA 02109

617.248.1806

dnathanson@woodnathanson.com

Counsel for Petitioner

____________________________________

Question Presented

Does the Fifth Amendment’s act of production doctrine apply to compelled decryption? If

so, what does the foregone conclusion exception to the act of production doctrine require the

government to show before an order to compel decryption can issue?

Table of Contents

Question Presented

.......................

Table of Contents

.......................

Table of Authorities

.......................

iii

Petition for a Writ of Certiorari . . . . . . . . . . . . . . . . . . . . .

Opinions Below

.......................

Jurisdiction

.......................

Relevant Constitutional Provision

Statement of the Case

..................

.......................

Reasons for Granting the Writ

....................

1. Although lower courts almost unanimously agree the decryption

of an encrypted device in response to a court order is a

testimonial act of production under the Fifth Amendment, they

are divided on what is produced by an order to compel

decryption and the application of the forgone conclusion

exception to the act of production.

2. Because the act of decryption provides access to the contents of

the device, the act of production doctrine requires that the

government identify with reasonable particularity the files,

documents, or items that it seeks from an encrypted device

before decryption can be compelled.

3. Although the prosecution of Jones has yet to be resolved in the

Massachusetts courts, this court has jurisdiction because the

Fifth Amendment issue has been finally decided and Jones

cannot obtain further review of that claim in the Massachusetts’s

courts.

Conclusion

.........................

Table of Authorities

Cases

Boyd v. United States,

116 U.S. 616 (1886)

.............................

Burns v. Ohio,

360 U.S. 252 (1959)

.............................

Carpenter v. United States,

138 S.Ct. 2206 (2018)

.............................

Clark v. Williard,

292 U.S. 112 (1934)

.............................

Commonwealth v. Gelfgatt,

468 Mass. 512 (2014)

.............................

Commonwealth v. Jones,

481 U.S. 540 (2019)

.............................

Cotton v. Hawaii,

211 U.S. 162 (1908)

.............................

Cox Broadcasting Corp. v. Cohn,

410 U.S. 469 (1975)

.............................

13,15

Fisher v. United States,

425 U.S. 391 (1976)

.............................

7,8

G.A.Q.L. v. State,

257 So.3d 1058 (Fl. Dist. Ct. App. 2018) . . . . . . . . . . . . . . . . . . .

In Re Grand Jury Subpoena Duces Tecum,

670 F.3d 1335 (11th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . .

8,9,10

Market St. Ry. Co. v. Railroad Commission of State of California,

342 U.S. 548 (1945)

.............................

McMenimen v. Passatempo,

452 Mass. 178 (2008)

.............................

iii

Seo v. State,

190 N.E.3d 418 (Ind. Ct. App.),

transfer granted, opinion vacated,

119 N.E.3d 90 (Ind. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

State v. Stahl,

206 So.3d 124 (Fl. Dist. Ct. App. 2016) . . . . . . . . . . . . . . . . . . . .

9,10

United States v. Apple MacPro Computer,

851 F.3d 238 (3rd Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8,9

United States v. Hubbell,

530 U.S. 27 (2000)

.............................

United States v. Kirschner,

823 F.3d 665 (E.D. Mich. 2010)

8,11,12

.........................

United States v. Spencer,

No. 17 CR 289, 2018 WL 1964588,

(N.D. Cal. April 29, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Other Authorities

Laurent Sacharoff, Unlocking the Fifth Amendment: Passwords

And Encrypted Devices,

87 Fordham L. Rev. 203 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . .

Laurent Sacharoff, What Am I Really Saying When I Open My Smartphone?

A Response to Professor Kerr,

97 Texas L. Rev. Online 1 (Feb. 1, 2019) . . . . . . . . . . . . . . . . . . .

Orin S. Kerr, Compelled Decryption and the Privilege

Against Self-Incrimination,

97 Texas L. Re. 767 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Orin S. Kerr & Bruce Schneier, Encryption Workarounds,

106 Geo. L. J. 989 (2018)

.............................

Petition for a Writ of Certiorari

Petitioner Dennis Jones respectfully petitions for a writ of certiorari to the

Supreme Judicial Court for the County of Suffolk in Commonwealth v. Jones, No.

SJ-2018-0221.

Opinions Below

The decision of the Massachusetts Supreme Judicial Court that compelled

the judgement of the Supreme Judicial Court for the County of Suffolk is reported

at 481 Mass. 540, 117 N.E.3d 720.

Jurisdiction

The Massachusetts Supreme Judicial Court for the County of Suffolk

entered a judgement on May 10, 2019. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(a).

Relevant Constitutional Provision

The Fifth Amendment to the United States Constitution provides in relevant

part: “No person… shall be compelled in any criminal case to be a witness against

himself…”

Statement of the Case

Jones was indicted on charges of trafficking a person for sexual servitude

in violation of Massachusetts G.L. c. 265, § 50(a), and deriving support from the

earnings of a prostitute in violation of Massachusetts G.L. c. 272, § 7. At the time

of his arrest, police found two phones on Jones person. The complainant, Jones’s

former girlfriend, alleged Jones used two mobile phone numbers to communicate

with her. She labelled these phone numbers Jones’s business phone and his personal

phone. The complainant alleged Jones used his business phone number to facilitate

the provision of sexual services for money. She claimed Jones would use the

business number to communicate with her and potential customers to facilitate

meetings where customers would pay the petitioner for sexual services. Police

confirmed one of the phones found on Jones at the time of his arrest corresponded

to the number the complainant alleged Jones used as his business phone.

The complainant voluntarily provided her phone to the police. The police

conducted a forensic analysis of her phone and discovered a number of

communications between the complainant and the business phone number. The

Commonwealth alleged some of these communications concerned Jones’s

prostitution enterprise. The communications included screen shots of hotel

reservation confirmations and conversations about servicing the complainant’s

clients.

Nine days after Jones’s arrest, a detective from the Woburn, Massachusetts

Police Department applied for a warrant to search the phone associated with the

business number. The police requested permission to search the contents of the

phone – all contacts, calendar entries, files, photographs, videos, caller-ids, text

messages, voice mails, email messages, and other materials - to corroborate the

complainant’s statements and to identify the “regular user of the phone.” A search

warrant for the phone issued but the police were unable to search the phone because

it was encrypted. The phone could only be decrypted with the entry of a passcode.

After the petitioner was indicted, the Commonwealth filed a motion in the

Massachusetts Superior Court seeking a court order requiring Jones to unlock the

phone it seized from him at the time of his arrest. The central legal issue of the

Commonwealth’s motion was whether compelling the defendant to enter the

password to the phone would violate his privilege against self-incrimination

guaranteed by both the Fifth Amendment to the United States Constitution and

Article 12 of the Massachusetts Declaration of Rights. The Commonwealth claimed

that under Commonwealth v. Gelfgatt, 468 Mass. 512, 520-526 (2014), the act of

entering the password was not testimonial because the defendant’s knowledge of

the passcode was known to the Commonwealth. The Commonwealth argued the

defendant’s knowledge of the passcode was therefore a foregone conclusion

rendering his entry of the passcode a non-testimonial act. The defendant claimed

the Commonwealth’s proposed order to compel him to enter the passcode and

produce the contents of the phone violated his right against self-incrimination under

both the Fifth Amendment and Article 12. The trial court denied the motion after

a hearing.

Several months later, the Commonwealth sought the issuance of an

additional search warrant for the business phone. This time the Commonwealth

requested a warrant to perform a “chip off procedure.” During a chip off procedure

information can be retrieved directly from a phone’s memory circuit or chip. During

the procedure, the memory chip or circuit is removed. After removal, the memory

of the device can be examined and retrieved without the need for a passcode. When

the court directed the application for the warrant to the same judge who denied the

motion to compel the passcode, the Commonwealth elected to withdraw the warrant

application. It then sought reconsideration of the motion to compel the passcode.

The Commonwealth presented additional information to support its claim the

defendant’s knowledge of the passcode was a foregone conclusion. This

information included subscriber information for the business phone, cell-site

location data and a police report of a prior incident during which Jones allegedly

provided the police with the business phone number as one of his contact numbers.

The Commonwealth argued this new information coupled with the material

submitted with its prior filings was sufficient to prove Jones owned the phone and,

inferentially,

knew

the

passcode.

The

defendant

again

claimed

the

Commonwealth’s proposed order to compel him to enter the passcode and produce

the contents of the phone violated his right against self-incrimination under both

the Fifth Amendment and Article 12 and the new material produced by the

Commonwealth added nothing. The reconsideration motion was denied by the trial

court.

The Commonwealth then filed a Petition for Extraordinary Relief with the

Single Justice of the Supreme Judicial Court for the County of Suffolk pursuant to

Massachusetts G.L. c. 211, § 3 (docket number SJ-2018-0221). The Single Justice

of the Supreme Judicial Court for the County of Suffolk is a distinct court from the

Massachusetts Supreme Judicial Court with original jurisdiction conferred by the

Massachusetts Constitution. The Single Justice reserved and reported the case for

determination by the Supreme Judicial Court for the Commonwealth. The parties

were ordered to address whether the Commonwealth established the defendant’s

knowledge of the passcode was a foregone conclusion as that term was used in

Commonwealth v. Gelfgatt, 468 Mass. 512, 520-526 (2014) in their briefs to the

Supreme Judicial Court.

After the reservation and report, the case was entered in the Supreme

Judicial Court for the Commonwealth (docket number SJC-12564). After briefing

and oral argument, the Supreme Judicial Court issued a decision on March 6, 2019.

The court recognized an act of production is a testimonial act under both the Fifth

Amendment of the United States Constitution in accordance with this court’s

decision in Fisher. Following Fisher, the Supreme Judicial Court noted an act of

production may be compelled without violating the Fifth Amendment of the United

States where “facts conveyed [by the act] are already known to the government”

and the act adds little to the government’s information. The court noted this was

the essence of the foregone conclusion doctrine. In the context of compelled

decryption, the court concluded the only fact conveyed by compelling a defendant

to enter a passcode is that the defendant knows the passcode and can access the

device. The court then concluded that to compel decryption of an electronic device,

the Commonwealth must establish a defendant knows the passcode to decrypt the

device before knowledge of the passcode can be deemed a foregone conclusion

under the Fifth Amendment.

After establishing the application of the act of production doctrine and

foregone conclusion exception applied to encrypted devices, the Supreme Judicial

Court addressed their application to Jones. Determining it has traditionally

considered Article 12 to be more protective of the right against self-incrimination

than the Fifth Amendment, the Supreme Judicial Court considered whether the

order to compel decryption would violate Article 12. Ultimately, the court

determined since the Commonwealth proved Jones knew the passcode, he could be

compelled by a court order to enter the passcode without violating Article 12.

The Supreme Judicial remanded the case back to the Supreme Judicial Court

for the County of Suffolk for entry of a judgement both reversing the denial of the

Commonwealth’s renewed motion to compel production of the passcode and

remanding the matter to the Superior Court for an entry of an order compelling

Jones to enter his password into the business phone. On May 10, 2019, the Supreme

Judicial Court for County of Suffolk entered a judgement ordering the Superior

Court to enter an order compelling Jones to enter the passcode to the business

phone.1

Reasons for Granting the Writ

1. Although lower courts almost unanimously agree the decryption of an

encrypted device in response to a court order is a testimonial act of

production under the Fifth Amendment, they are divided on what is

produced by an order to compel decryption and the application of the

forgone conclusion exception to the act of production.

American society has become increasingly reliant on digital technology to

navigate daily life. This reliance has made digital technology invaluable but also a

source of vulnerability. Encryption technology is often employed to protect the

information found on digital devices, including mobile phones. Orin S. Kerr &

Bruce Schneier, Encryption Workarounds, 106 Geo. L.J. 989, 990 (2018).

Encryption technology renders the materials unreadable until a code or decryption

After remand, the trial court ordered Jones to enter his passcode. After re-asserting

his Fifth Amendment privilege, Jones used a passcode to decrypt the phone in

accordance with the court order.

key is entered. Id at 993-994. Law enforcement is not immune from reliance on

digital technology and applications for warrants to search a digital device have

become routine aspects of a criminal investigation. When the device is encrypted,

the government may request an order to compel the decryption of the device to

effectuate the search.

An order to compel a defendant to produce documents implicates the Fifth

Amendment. Fisher v. United States, 425 U.S. 391 (1976). This court originally

interpreted the Fifth Amendment as affording protection to all private papers. Boyd

v. United States, 116 U.S. 616 (1886). Fisher v. United States changed that

understanding. In Fisher, the government sought production of tax records. Fisher,

425 U.S. at 394-395. Fisher claimed the Fifth Amendment protected against

disclosure of the records. Id at 395. When addressing the Fifth Amendment claim

in Fisher this Court rejected the holding in Boyd that the Fifth Amendment

protected all personal papers and documents. Id at 407-409. The court reasoned

because Fisher’s tax records existed at the time of the subpoena was issued, the

papers themselves were not testimonial because they were not created in response

to the subpoena. Id at 409-410. Although Fisher rescinded blanket Fifth

Amendment protection for private papers, it held the act of producing documents

in response to the subpoena could be testimonial if the act of production used the

contents of the mind and conceded, either explicitly or implicitly, the existence,

possession and control, or authenticity of the documents. Id at 408-414. This

Court’s holding in Fisher became known as the act of production doctrine.

But Fisher did not immunize all documents from production. The court

provided an exception to the act of production doctrine. If the government can

demonstrate the existence, possession or control, and authenticity of the identified

documents or materials it seeks is a foregone conclusion, then the act of production

adds little to the government’s information because the government t is not relying

on the veracity of the statement implicit in the act of production to prove the

existence, possession or control or authenticity of the documents. Fisher, 425 U.S.

at 410-411. This court further clarified the foregone conclusion exception to the act

of production in United States v. Hubbell. Although Hubbell did not define the

parameters of the foregone conclusion exception more specifically than Fisher, it

noted the government needed to independently confirm the existence, authenticity,

and possession or custody of the materials sought for the foregone conclusion

exception to apply. United States v. Hubbell, 530 U.S. 27, 38 (2000). The burden

rests on the government to prove independent knowledge of the documents to be

produced. It cannot make up for any deficiencies in its showing by offering

generalizations that the materials would typically be possessed by an individual.

Hubbell, 530 U.S. at 38.

Almost all lower courts who have addressed orders to compel decryption

have agreed the entry of a passcode or encryption key is an act of production. See,

e.g. United States v. Apple MacPro Computer, 851 F.3d 238 (3rd Cir. 2017); In Re

Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir. 2012); United States

v. Kirschner, 823 F.Supp.2d 665 (E.D. Mich. 2010); Seo v. State, 190 N.E. 3rd 418

(Ind. Ct. App.), transfer granted, opinion vacated, 119 N.E. 3rd 90 (Ind. 2018). The

entry of a passcode involves the use of the mind and concedes the existence,

possession or control, and authenticity of the materials or documents sought by the

government. Orin S. Kerr, Compelled Decryption and the Privilege Against SelfIncrimination, 97 Texas L. 767, 779-782 (2019). While there is relative unanimity

over whether the act of production applies to compelled decryption, there is a split

among lower courts over the question of what is produced by a decryption order

and, relatedly, what the government must prove to establish the foregone

conclusion exception. This split nominally centers on the question of what is

produced by an order to decrypt. One side of this split views an order to decrypt as

compelling the production of the documents and materials on the decrypted device.

See, e.g., In Re Grand Jury Subpoena Duces Tecum, 670 F.3d 1335 (11th Cir.

2012); G.A.Q.L. v. State, 257 So.3d 1058, 1063-1064 (Fl. Dist. Ct. App. 2018); Seo

v. State, 190 N.E. 3rd 418 (Ind. Ct. App.), transfer granted, opinion vacated, 119

N.E. 3rd 90 (Ind. 2018). The other side of the split holds a decryption order seeks

only the passcode itself. See, e.g., United States v. Spencer, No. 17 CR 289, 2018

WL 1964588 (N.D. Cal. April 26, 2018); United States v. Apple MacPro Computer,

851 F.3d 238 (3rd Cir. 2017); State v. Stahl, 206 So.3d 124 (Fla. Dist. Ct. App.

2016). The decision of the SJC here falls into this second group. Commonwealth v.

Jones, 481 Mass. 540, 548 (2019).

2. Because the act of decryption provides access to the contents of the

device, the act of production doctrine requires that the government

identify with reasonable particularity the files, documents, or items

that it seeks from an encrypted device before decryption can be

compelled.

An order to compel decryption is typically the means by which the government

accesses the contents of an encrypted device. Like a subpoena to produce records,

the order to compel the entry of the passcode is the legal means by which the

government forces a defendant to produce the material it seeks. When a person

enters a passcode into her phone or other encrypted device, she makes the entire

contents of her phone available. Laurent Sacharoff, Unlocking the Fifth

Amendment: Passwords and Encrypted Devices, 87 Fordham L. Rev. 203, 221-222

(2018). The contents are unreadable prior to the entry of the passcode. The passcode

is only the means through which the contents of the device are produced. Because

it is the contents of the encrypted device and not the passcode that are produced in

response to an order to compel decryption, the tenets of the act of production

doctrine are best served by requiring the government to identify with reasonable

particularity the material sought from the encrypted device before an order to

decrypt can issue. See In Re Grand Jury Subpoena, 670 F.3d at 1347-1352.

The testimonial nature of the act of production doctrine rests on inferences.

When a person produces documents in response to a subpoena, her actions infer

that the documents requested exist, that the she has possession or control of the

documents and they are authentic. See Hubbell, 530 U.S. at 36-37 (2000). If that

same person enters a passcode into an encrypted device, her act creates an inference

she knows the passcode to the device and can access it. But it also creates an

inference she owns the device and has possession and knowledge of its contents.

See Laurent Sacharoff, What Am I Really Saying When I Open My Smartphone? A

Response to Professor Kerr, 97 Texas L. Rev. Online 1, 5-11 (Feb. 1, 2019).

Because the testimonial nature of the act of production arises from the inferences

generated by that act of production, the doctrine requires the government prove that

it already has sufficient information to generate those very inferences before the

foregone conclusion exception is applicable. See Hubbell, 530 U.S. at 44-45 (2000).

In other words, the government must be able to provide an independent source for

any inference that would be generated by the act of production before the foregone

conclusion exception applies. Id.

When applied to orders to compel decryption of a phone, the act of production

doctrine requires that the government must identify the specific content located on

the phone before the foregone conclusion exception is triggered allowing the

compelled production of the contents of the device. Entry of the passcode says more

than “I know the passcode.” It infers possession of the myriad pictures, texts,

videos, emails and other documents contained on the phone. If the government

cannot demonstrate it already knows everything the act of production will reveal,

the decryption of the device cannot be compelled consonant with the Fifth

Amendment. Limiting consideration of the act of production doctrine and foregone

conclusion exception to the passcode alone, as the Supreme Judicial Court did here,

results in the compulsion of a communication without the assurance that the

government has a source for that communication aside from the compelled

production. See Hubbell, 530 U.S. at 38 (2000).

Requiring the government to identify with reasonable particularity the

documents or other materials it seeks before an order of decryption may be issued

also preserves the uniform application of the act of production doctrine and the

foregone conclusion exception. If, as the Supreme Judicial Court held, the act of

production doctrine and the foregone conclusion exception only require the

government to demonstrate a defendant knows the passcode before decryption can

be compelled, the standards applied to the production of paper documents and

documents from an encrypted device are different. If the government were to issue

a subpoena requesting the production of a paper copy of an email or picture, the act

of production doctrine requires the government demonstrate it knows of the

existence, location and authenticity of the email or picture before the defendant cam

be compelled to produce them. However, if the government sought the same email

or picture from an encrypted device, it would only need to demonstrate the

defendant knows the passcode to the device. The government’s burden would be

lower for an encrypted device because it would not need to identify the email or

picture for an order to compel to issue. Advances in digital technology should not

lessen the government’s burden. See Carpenter v. United States, 138 S. Ct. 2206,

2217-2219, 2222 (2018).

3. Although the prosecution of Jones has yet to be resolved in the

Massachusetts courts, this court has jurisdiction because the Fifth

Amendment issue has been finally decided and Jones cannot obtain

further review of that claim in the Massachusetts’s courts.

This Court has jurisdiction to address this petition because the Supreme Judicial

Court’s decision is final regarding the order to decrypt. For a state court judgement

to be final and reviewable in this court, it cannot be subject to any further review in

a state court and the judgement must be an effective determination of the litigation.

See also Market St. Ry Co. v. Railroad Commission of State of California, 342 U.S.

548, 551 (1945) (For the Supreme Court to exercise jurisdiction the state court

judgement “must be the final word of the final court.”). A case is final for

jurisdictional purposes if the state court judgement conclusively disposes of a

matter distinct from the general subject of the litigation and effects only the parties

to the controversy. Clark v. Willard, 292 U.S. 112, 117-119 (1934). While state law

may be relied upon by this court to determine if the judgement is final, the decision

whether the court has jurisdiction under §1257(a) is for this court to decide. Burns

v. Ohio, 360 U.S. 252 (1959); Cotton v. Hawaii, 211 U.S. 162, 170-171 (1908). A

state court judgement can be final even though there are further proceedings on the

merits where the federal claim has been finally decided and there is no possibility

for further review in the state courts. See Cox Broadcasting Corp. v. Cohn, 420

U.S. 469, 481-482 (1975).

After the Commonwealth’s motion to compel decryption was denied, it brought

a Petition for Extraordinary Relief to the Single Justice for Suffolk County pursuant

to Massachusetts G.L. c. 211, § 3. That statute grants the Supreme Judicial Court

general superintendence of the lower courts. Relief under c. 211, § 3 is an

extraordinary remedy meant for situations where a litigant has no alternative

remedy. McMeninmen v. Passatempo, 452 Mass. 178, 190 (2008). The petition for

relief is essentially a complaint filed with the Single Justice for Suffolk County that

is separate from the underlying legal action. Id at 191. (“An action seeking relief

under c. 211, § 3 is a new and separate civil action in the county court.”) It is not

an interlocutory appeal. The Single Justice may act on the petition or may report

the issue to the Supreme Judicial Court for the Commonwealth. If the Single Justice

acts on the petition without reporting it and enters a judgement, that judgement is

appealable as a matter of right. McMenimen, 452 Mass. at 191. If the Single Justice

reports the petition to the full bench, judgement is not entered until after the

Supreme Judicial Court for the Commonwealth issues its decision. The judgement

that is entered in the county court following the decision of the full bench of the

Supreme Judicial Court is a final judgement that is not subject to further review in

any Massachusetts court. See McMenimen, 452 Mass. at 191. As was the case here,

the judgment in the Single Justice session consists of an order to the trial court

instructing it how to proceed.

Jones cannot obtain further review in the Massachusetts courts of his

Federal constitutional claim if he is ultimately convicted because Massachusetts

state law prevents him from presenting his claims on review. The judgement of the

Single Justice is the final determination in Massachusetts regarding whether the

Fifth Amendment precludes the issuance of an order for Jones to decrypt the phone.

Because there is no further avenue for review of Jones’s Fifth Amendment claim,

this court has jurisdiction to entertain this petition regardless of the continuing

action in the Massachusetts’ trial court. See Cox Broadcasting Corp., 420 U.S. at

481-482.

Conclusion

The order to compel decryption here violated the Fifth Amendment because

the act of production it required was testimonial. The Commonwealth failed to meet

its burden under the foregone conclusion exception because it did not identify with

reasonable particularity any documents contained on the phone. The Massachusetts

Supreme Judicial Court misapplied the act of production doctrine and foregone

conclusion exception when it determined the passcode was the thing produced by

the order of production.

This court has jurisdiction because Jones cannot obtain further review of the

Fifth Amendment question in the Massachusetts’s courts.

Jones requests this court grant his petition for certiorari.

Respectfully submitted,

James A. Reidy,

Law Office of James A. Reidy

P.O. Box 920365

Needham, MA 02492

(617) 323-6060

jreidy@jamesareidylaw.com

David Nathanson,

Counsel of Record

Wood & Nathanson, LLP

50 Congress Street

Suite 600

Boston, MA 02109

(617) 248-1806

dnathanson@woodnathanson.com

Appendix A

NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound

volumes of the Official Reports. If you find a typographical

error or other formal error, please notify the Reporter of

Decisions, Supreme Judicial Court, John Adams Courthouse, 1

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 5571030; SJCReporter@sjc.state.ma.us

SJC-12564

COMMONWEALTH

Suffolk.

Present:

vs.

DENNIS JONES.

November 6, 2018. - March 6, 2019.

Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &

Kafker, JJ.

Cellular Telephone. Witness, Compelling giving of evidence,

Self-incrimination. Constitutional Law, Selfincrimination.

Civil action commenced in the Supreme Judicial Court for

the county of Suffolk on May 17, 2018.

The case was reported by Gants, C.J.

Gabriel Pell, Assistant District Attorney, for the

Commonwealth.

James A. Reidy (George F. Ohlson, Jr., also present) for

the defendant.

The following submitted briefs for amici curiae:

Andrew Levchuk & Lauren C. Ostberg for Orin S. Kerr.

David Rangaviz, Committee for Public Counsel Services, for

Committee for Public Counsel Services.

Maura Healey, Attorney General, & Randall E. Ravitz,

Assistant Attorney General, for the Attorney General.

Laurent Sacharoff, pro se.

(1a)

KAFKER, J.

A grand jury returned indictments charging the

defendant, Dennis Jones, with trafficking a person for sexual

servitude, G. L. c. 265, § 50 (a), and deriving support from the

earnings of a prostitute, G. L. c. 272, § 7.

At the time of his

arrest, the Commonwealth seized a cell phone from the defendant.

During its investigation of the defendant, the Commonwealth

developed information leading it to believe that the contents of

the cell phone included material and inculpatory evidence.

The

Commonwealth thereafter applied for and was granted a search

warrant to search the cell phone.

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.1

The Commonwealth sought to compel the defendant to decrypt

the cell phone by filing a motion for an order requiring the

defendant to produce a personal identification number access

code in the Superior Court.

The central legal issue concerned

whether compelling the defendant to enter the password to the

We understand the word "password" to be synonymous with

other terms that cell phone users may be familiar with, such as

Personal Identification Number or "passcode." Each term refers

to the personalized combination of letters or digits that, when

manually entered by the user, "unlocks" a cell phone. For

simplicity, we use "password" throughout. See generally, Kerr &

Schneier, Encryption Workarounds, 106 Geo. L.J. 989, 990, 994,

998 (2018).

(2a)

cell phone would violate his privilege against selfincrimination guaranteed by both the Fifth Amendment to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights.

The Commonwealth argued that under our

decision in Commonwealth v. Gelfgatt, 468 Mass. 512 (2014), the

act of entering the password would not amount to selfincrimination because the defendant's knowledge of the password

was already known to the Commonwealth, and was therefore a

"foregone conclusion" under the Fifth Amendment and art. 12.

Following a hearing, a judge denied the Commonwealth's motion,

concluding that the Commonwealth had not proved that the

defendant's knowledge of the password was a foregone conclusion

under the Fifth Amendment.

Several months later, the Commonwealth renewed its motion

and included additional factual information that it had not set

forth in its initial motion.

The judge denied the renewed

motion, noting that because the additional information was known

or reasonably available to the Commonwealth when the initial

motion was filed, he was "not inclined" to consider the renewed

motion under the Massachusetts Rules of Criminal Procedure.

The

judge concluded that even if he were to consider the renewed

motion, the Commonwealth had still failed to prove that the

defendant's knowledge of the password was a foregone conclusion.

(3a)

The Commonwealth then filed a petition for relief in the

county court, pursuant to G. L. c. 211, § 3; the single justice

reserved and reported the case to the full court.

The single

justice asked the parties to address three specific issues, in

addition to any other questions they thought relevant.

Those

issues are the following:

"1. What is the burden of proof that the Commonwealth

bears on a motion like this in order to establish a

'foregone conclusion,' as that term is used in Commonwealth

v. Gelfgatt, 468 Mass. 512, 520-526 (2014)?

"2. Did the Commonwealth meet its burden of proof in this

case?

"3. When a judge denies a 'Gelfgatt' motion filed by the

Commonwealth and the Commonwealth thereafter renews its

motion and provides additional supporting information that

it had not provided in support of the motion initially, is

a judge acting on the renewed motion first required to find

that the additional information was not known or reasonably

available to the Commonwealth when the earlier motion was

filed before considering the additional information?"

We conclude that when the Commonwealth seeks an order pursuant

to our decision in Gelfgatt (Gelfgatt order or motion)

compelling a defendant to decrypt an electronic device by

entering a password, art. 12 requires the Commonwealth to prove

that the defendant knows the password beyond a reasonable doubt

for the foregone conclusion exception to apply.

We also

conclude that the Commonwealth met its burden in this case.

Finally, we conclude that a judge acting on a renewed Gelfgatt

motion may consider additional information without first finding

(4a)

that it was not known or not reasonably available to the

Commonwealth at the time the earlier Gelfgatt motion was filed.

We therefore reverse the judge's denial of the

Commonwealth's renewed Gelfgatt motion, and we remand the case

to the Superior Court for entry of an order compelling the

defendant to enter the password into the cell phone at issue.2

Background.

The relevant undisputed facts are taken from

the parties' submissions to the motion judge.3

See Gelfgatt, 468

Mass. at 514.

The investigation and the defendant's arrest.

December 2016, the police responded to a report of a stolen

purse at a hotel in Woburn.

Upon arriving, the woman whose

purse was stolen, Sara,4 identified the defendant as the

perpetrator of the theft.

She explained that she knew the

defendant because she had met him through an online dating

website a few weeks earlier.

Sara eventually disclosed that

We acknowledge the amicus briefs submitted by the Attorney

General of the Commonwealth of Massachusetts, the Committee for

Public Counsel Services, and Professor Orin S. Kerr. We also

acknowledge the amicus submission of Professor Laurent

Sacharoff.

These submissions included the Commonwealth's initial

search warrant application, and exhibits attached thereto;

various affidavits of law enforcement officers, and exhibits

attached thereto. The motion judge did not hear testimony from

any witnesses or make any credibility findings. He denied the

motion based on the documentary record.

A pseudonym.

See G. L. c. 265 § 24C.

(5a)

although she had initially believed that she and the defendant

were dating, the defendant soon induced her into working as a

prostitute in exchange for housing.

Based on this information,

the police began investigating the defendant.

During their investigation, police linked a cell phone,

later determined to be an LG brand cell phone (LG phone), to the

defendant.

Sara stated that she communicated with the defendant

by contacting the LG phone.

Specifically, she "talk[ed] on the

phone and [exchanged] text messag[es] with [the defendant]"

while he used the LG phone.

Additionally, the LG phone's

telephone number was listed in the contacts section of Sara's

cell phone as "[]Dennis."

Sara told police that the LG phone was used by the

defendant and a female associate to conduct prostitution.

Specifically, Sara explained that the defendant would regularly

respond to customer text messages by using the LG phone, but

that his female associate would answer telephone calls from

customers so that the customers would hear a "female voice."

Additionally, an examination of Sara's cell phone revealed

several communications between her phone and the LG phone

related to prostitution, including screenshots of customer

communications sent to the LG phone in response to online

advertisements seeking to arrange prostitution transactions with

Sara; messages from the LG phone explicitly instructing Sara on

(6a)

how to perform sexual acts on customers; messages from the LG

phone trying to convince Sara to return to the defendant after

she had attempted to flee from him out of fear; and messages

from the LG phone apologizing for the defendant's behavior.

Police also discovered several Internet postings on the website

Backpage.com advertising Sara as an escort that listed the

telephone number of the LG phone as the principal point of

contact for customers seeking to engage in a prostitution

transaction with her.

The police arrested the defendant shortly after commencing

their investigation.

At the time of the arrest, the police

recovered two cell phones in his possession, one of which was

the LG phone.

The LG phone was found in the defendant's pants

pocket.

Soon after the arrest, the police applied for a search

warrant to perform a forensic search of the LG phone.

application was granted.

The

The police thereafter attempted to

execute the search warrant, but discovered that its contents

were encrypted such that they could be accessed only after the

entry of a password to unlock, and thereby decrypt, the cell

phone.5

The police determined that they did not have the

We recognize that ordinary cell phone users are likely

unfamiliar with the complexities of encryption technology. For

instance, although entering a password "unlocks" a cell phone,

the password itself is not the "encryption key" that decrypts

(7a)

technological capability to bypass the lock function without the

entry of the password and were therefore unable to execute the

search warrant.

The Commonwealth's Gelfgatt motions.

As discussed

supra, the Commonwealth filed a Gelfgatt motion seeking a court

order compelling the defendant to decrypt the LG phone by

entering its password.

The Commonwealth argued that compelling

the defendant to enter the password would not force him to

incriminate himself because the act itself would not reveal any

information that the Commonwealth did not already know.

Following a hearing, a judge denied the motion, concluding that

because the Commonwealth had failed to "demonstrate[] with

reasonable particularity that [the defendant] possesses the

[password] for the LG phone," the defendant's knowledge of the

password was not a foregone conclusion under the Fifth

Amendment.

When the Commonwealth renewed its motion, it presented

additional factual information that it argued proved that the

the cell phone's contents. See Kerr & Schneier, supra at 995.

Rather, "entering the [password] decrypts the [encryption] key,

enabling the key to be processed and unlocking the phone. This

two-stage process is invisible to the casual user." Id.

Because the technical details of encryption technology do not

play a role in our analysis, they are not worth belaboring.

Accordingly, we treat the entry of a password as effectively

decrypting the contents of a cell phone. For a more detailed

discussion of encryption technology, see generally Kerr &

Schneier, supra.

(8a)

defendant's knowledge of the password was a foregone conclusion,

including the LG phone's subscriber information that tended to

link the defendant to the LG phone, subsets of the LG phone's

cell site location information (CSLI) records, and a prior

statement the defendant had made to police during his booking in

an unrelated criminal matter in which he identified the LG phone

as his telephone number.

The judge denied the renewed motion.

The Commonwealth filed a petition for relief in the county

court, pursuant to G. L. c. 211, § 3.

The single justice

reserved and reported the case to the full court, asking the

parties to address the three questions quoted supra.

Discussion.

The Fifth Amendment provides that "[n]o person

. . . shall be compelled in any criminal case to be a witness

against himself."

Similarly, art. 12 provides that "[n]o

subject shall . . . be compelled to accuse, or furnish evidence

against himself."

Accordingly, it is a "fundamental principle

of our system of justice" that a person enjoys the "right to be

free from self-incrimination" under the Fifth Amendment and art.

12.

Commonwealth v. Borans, 388 Mass. 453, 455 (1983).

The privilege against self-incrimination applies when the

"accused is compelled to make a testimonial communication that

is incriminating."

(1976).

Fisher v. United States, 425 U.S. 391, 408

See Commonwealth v. Burgess, 426 Mass. 206, 218 (1997).

Testimonial communications are not limited to spoken words or

(9a)

written statements, however, as the act of producing information

"demanded by the government may have 'communicative aspects'

that would render the Fifth Amendment" and art. 12 applicable.

Gelfgatt, 468 Mass. at 520, quoting Fisher, 425 U.S. at 410.

"Whether an act of production is testimonial depends on 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" (quotations and citation omitted).6

Gelfgatt, supra at 520.

See id. at 525-526 ("Where the

information conveyed by an act of production is reflective of

the knowledge, understanding, and thoughts of the witness, it is

deemed to be testimonial and, therefore, within the purview of

art. 12" [quotations and citation omitted]).

The Commonwealth may, however, compel testimonial acts of

production without violating a defendant's rights under the

Fifth Amendment or art. 12 where the "facts conveyed [by the

act] already are known to the government, such that the

For example, the privilege against self-incrimination is

not implicated when the government seeks "to compel an

individual to be the source of real or physical evidence by, for

example," furnishing a blood sample, taking a breathalyzer test,

producing a voice exemplar, providing a handwriting exemplar,

standing in a lineup, or putting on particular clothing.

Commonwealth v. Gelfgatt, 468 Mass. 512, 521 (2014), and cases

cited. In these circumstances, the conduct is not testimonial

because the "the individual is not required to disclose any

knowledge he [or she] might have or to speak his [or her] guilt"

(quotations and citation omitted). Id. at 521.

(10a)

individual 'adds little or nothing to the sum total of the

Government's information.'"

Fisher, 425 U.S. at 411.

Gelfgatt, 468 Mass. at 522, quoting

In these circumstances, because the

facts implicitly disclosed through the act of production are

already known to the Commonwealth, they are considered a

"foregone conclusion" and do not force a defendant to

incriminate himself or herself.

Gelfgatt, supra at 522-523,

525-526.

Although the foregone conclusion exception originated in

the context of the compelled production of documents in response

to a government subpoena, see Fisher, 425 U.S. at 411, we

extended its application to the compelled production of

passwords to encrypted electronic devices in Commonwealth v.

Gelfgatt, 468 Mass. at 522-525.7

In Gelfgatt, the defendant was

an attorney who was alleged to have, "through his use of

computers, conducted a sophisticated scheme of diverting to

himself funds that were intended to be used to pay off large

mortgage loans."

Id. at 513.

The files located on four

computers seized from the defendant, however, were encrypted and

Several other courts have done the same. See, e.g.,

United States v. Apple MacPro Computer, 851 F.3d 238, 247-248

(3d Cir. 2017), cert. denied sub nom. Doe v. United States, 138

S. Ct. 1988 (2018); In re Grand Jury Subpoena Duces Tecum Dated

March 25, 2011, 670 F.3d 1335, 1344-1345 (11th Cir. 2012)

(Subpoena Duces Tecum); United States vs. Spencer, U.S. Dist.

Ct., No. 17-cr-00259-CRB-1 (N.D. Ca. Apr. 26, 2018); State v.

Stahl, 206 So. 3d 124, 135-137 (Fla. Dist. Ct. App. 2016).

(11a)

were thus inaccessible to the Commonwealth without the entry of

a password to decrypt them.

Id. at 516-517.

We concluded that

compelling the defendant to decrypt the files by entering the

passwords into the computers could be a testimonial act of

production under the Fifth Amendment and art. 12.

525-526.

Id. at 522,

Nonetheless, we held that "[t]he facts that would be

conveyed by the defendant through his act of decryption . . .

already [were] known to the [Commonwealth] and, thus, [were] a

'foregone conclusion.'"8

Id. at 524.

We therefore held that the

Commonwealth's motion to compel decryption did not violate

either the Fifth Amendment or art. 12.

Id. at 524, 525.

See

id. at 523 (because facts conveyed by act of decryption were

foregone conclusion, "the act of decryption is not a testimonial

communication that is protected" by Fifth Amendment or art. 12).

In Gelfgatt, we noted that by entering the passwords, the

defendant implicitly conveyed the fact that he knew the

computers were encrypted, that he knew the passwords to decrypt

the computers, and that he had "ownership and control of the

computers and their contents." Gelfgatt, 468 Mass. at 524.

Although correctly describing the facts in Gelfgatt, we clarify

today that the entry of a password alone does not convey the

fact of "ownership" of the device or its contents. Id. Whether

entry of a password indicates control also is unclear. Indeed,

individuals may very well know the password to an electronic

device that is owned and controlled by another person. For

example, family members and significant others routinely know

the passwords to each other's cell phones, and students are

regularly given passwords to school-owned computers. The fact

of knowledge of a password is distinct from the ownership or

control of the device and its contents.

(12a)

Accordingly, for the foregone conclusion exception to

apply, the Commonwealth must establish that it already knows the

testimony that is implicit in the act of the required

production.

Id. at 522-523.

In the context of compelled

decryption, the only fact conveyed by compelling a defendant to

enter the password to an encrypted electronic device is that the

defendant knows the password, and can therefore access the

device.9

See id.

See also Kerr, Compelled Decryption and the

The Commonwealth's Gelfgatt motions in this case requested

that the defendant "produce" or "provide" the password to the LG

phone. Although it is not perfectly clear what the Commonwealth

meant by "produce" or "provide," its proposed order suggested

that it sought to require the defendant to make a written

disclosure of the actual password to the LG phone. There is

some debate among courts and commenters as to whether the

foregone conclusion exception can apply in cases where the

government seeks to compel the defendant to disclose -- whether

orally or in writing -- the actual password, as opposed to cases

requiring merely physically entering it into the device.

Compare Stahl, 206 So. 3d at 134 (password itself has no

"testimonial significance" and thus may be compelled [citation

omitted]), with Spencer, U.S. Dist. Ct., No. 17-cr-00259-CRB-1

("the government could not compel Spencer to state the password

itself, whether orally or in writing"), and Sacharoff, Unlocking

the Fifth Amendment: Passwords and Encrypted Devices, 87

Fordham L. Rev. 203, 236 (2018) ("It is a mistake to apply the

foregone conclusion doctrine to the oral disclosure of a

password"). See generally Doe v. United States, 487 U.S. 201,

210 n.9 (1988) (compelling someone to reveal combination to wall

safe, as opposed to merely surrender key to strong box, is

testimonial). There is some support for the idea that the

written disclosure of the password would amount to direct

testimony, not an act of production, and that the foregone

conclusion exception is limited only to acts of production. 3

W.R. LaFave, J.H. Israel, N.J. King, & O.S. Kerr, Criminal

Procedure § 8.13(a) (4th ed. 2015) ("requir[ing a] party to

reveal a pass[word] that would allow [the government] to perform

the decryption . . . would require a testimonial communication

(13a)

Privilege Against Self-incrimination, Tex. L. Rev. (forthcoming

2019) (manuscript at 18) ("the only assertion implied by

entering the password is that the person compelled knows the

password").

The Commonwealth must therefore establish that a

defendant knows the password to decrypt an electronic device

before his or her knowledge of the password can be deemed a

foregone conclusion under the Fifth Amendment or art. 12.10

standing apart from the act of production, and therefore make

unavailable the foregone conclusion doctrine"). We need not,

and do not, resolve this distinction here, and our decision is

therefore limited to only the physical entry of the password by

the defendant, as we required in Gelfgatt. The defendant may

therefore only be compelled to enter the password to the LG

phone, not disclose it.

The motion judge interpreted our decision in Gelfgatt to

require that the Commonwealth establish "(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." What the motion judge meant by evidence in this

context is not particularly clear, nor were we as clear as we

might have been in our analysis in Gelfgatt. We clarify that

the evidence at issue in the compelled decryption here is the

password itself, not the contents of the phone.

As we explained supra, the only testimony that would be

conveyed by compelling the defendant to enter the password is

the fact that the defendant knows the password, and therefore

has the ability to access the phone. The entry would convey no

information about the contents of the LG phone. See Stahl, 206

So. 3d at 136 ("The question is not the State's knowledge of the

contents of the phone; the State has not requested the contents

of the phone"). The analysis would be different had the

Commonwealth sought to compel the defendant to produce specific

files located in the contents of the LG phone. If that had been

the case, the production of the files would implicitly convey

far more information than just the fact that the defendant knows

the password. See Subpoena Duces Tecum, 670 F.3d at 1347, 1349.

The defendant's production of specific files would implicitly

(14a)

With this analytical framework in mind, we turn now to the

reported questions.11

testify to the existence of the files, his control over them,

and their authenticity. United States v. Hubbell, 530 U.S. 27,

36 n.19 (2000) ("by producing documents in compliance with a

subpoena, the witness would admit that the papers existed, were

in his possession or control, and were authentic").

Accordingly, the Commonwealth would be required to prove its

prior knowledge of those facts.

The concurrence suggests that in addition to proving the

defendant's knowledge of the password, the government must also

demonstrate that it "already knows, with reasonable

particularity, the existence and location of relevant,

incriminating evidence it expects to find on that device." Post

. Without this added requirement, the concurrence argues,

the government may obtain "unlimited . . . access," post at note

4, to a "trove of potential incriminating and highly personal

data on an electronic device" by proving only "that the accused

knows the device's pass[word]," post at

. This is not

correct.

It is well established that under the Fourth Amendment to

the United States Constitution and art. 14 of the Massachusetts

Declaration of Rights, the police are ordinarily required to

obtain a search warrant before a search of the contents of an

electronic device may take place. See, e.g., Riley v.

California, 573 U.S. 373, 386 (2014) (cell phones); Commonwealth

v. Mauricio, 477 Mass. 588, 594 (2017) (digital cameras);

Commonwealth v. McDermott, 448 Mass. 750, 776, cert. denied, 552

U.S. 910 (2007) (computers). Accordingly, in this case, the

police were required to obtain a warrant before they could seek

to search the contents of the LG phone, and they did so. The

full protections against improper searches -- probable cause to

believe that a crime had been committed and that evidence of the

crime would be found on the device -- were required and, in the

opinion of the clerk-magistrate who issued the search warrant,

were satisfied here. The standard proposed by the concurrence

conflates these protections with the protections afforded by

art. 12 of the Massachusetts Declaration of Rights. Our task

under art. 12 in this context is to determine only what facts

are conveyed to the government when a defendant is compelled to

enter a password to decrypt an electronic device. As we have

explained, the only fact conveyed by the physical act of

(15a)

entering the password into an electronic device is that the

defendant knows the password. Such an act says nothing about

the contents of the device. Nor does the act alone "produce"

any evidence to the Commonwealth. Post at note 1.

Accordingly, under these circumstances, the Commonwealth

was required to abide by two sets of constitutional protections.

Requiring this dual protection does not, as the concurrence

contends, sound a "death knell" of constitutional protection in

. Nor do we read the two

the digital age. Post at

constitutional protections in "splendid isolation." Post at

note 1. Each has its own purpose, function, and requirements,

and they work together to form a double protection of digital

privacy before particular files on the phone can be accessed.

Moreover, cases from the United States Courts of Appeals

cited by the concurrence in support of its proposed standard do

not support its application to cases where, as here, the

government seeks only to compel the entry of the password to an

electronic device. Post at

. For example, the Eleventh

Circuit's decision in Subpoena Duces Tecum was a case where the

government "served [the defendant] with a subpoena duces tecum

requiring him to . . . produce the unencrypted contents located

on the hard drives of . . . laptop computers and five external

hard drives" (emphasis added). Subpoena Duces Tecum, 670 F.3d

at 1337. There, the government sought not only to compel the

defendant to enter the passwords to the devices, but also to

compel the defendant to identify and produce the files located

in the device in their unencrypted state. Id. The compelled

act of identifying and producing files conveys far more

information to the government than what the Commonwealth seeks

in this case. See note 10, supra. The reference by the

concurrence to the Third Circuit's decision in Apple MacPro

Computer is similarly unavailing. As the concurrence

acknowledges, although the Third Circuit did apply the

concurrence's proposed standard in that case, it did so while

reviewing the Federal District Court's application of the

standard for plain error and expressly stated that "[i]t is

important to note that we are not concluding that the

Government's knowledge of the content of the devices is

necessarily the correct focus of the 'foregone conclusion'

inquiry in the context of a compelled decryption order"

(emphasis added). Apple MacPro Computer, 851 F.3d at 248 n.7.

The court went on to note that "a very sound argument can be

made that the foregone conclusion doctrine properly focuses on

whether the Government already knows the testimony that is

(16a)

motion.

First reported question:

burden of proof in a Gelfgatt

The first question reported to us by the single justice

is one left unanswered in Gelfgatt:

"What is the burden of

proof that the Commonwealth bears in [a Gelfgatt motion] in

order to establish a foregone conclusion . . . ?"

Burden of proof under the Fifth Amendment.

Although

several State and Federal courts have applied the foregone

conclusion exception in the context of compelled decryption,

apparently only one court has meaningfully articulated the

standard of proof the government bears to establish that a

defendant's knowledge of the password to decrypt an electronic

device is a foregone conclusion under the Fifth Amendment.

United States vs. Spencer, U.S. Dist. Ct., No. 17-cr-00259-CRB-1

(N.D. Ca. Apr. 26, 2018).

In the Spencer decision, the court

concluded that the appropriate standard of proof under the Fifth

Amendment is clear and convincing evidence.

Id.

In so doing,

the court explained that this standard places "a high burden on

the government to demonstrate that the defendant's ability to

decrypt the device at issue is a foregone conclusion."

Id.

The

court noted that a high burden was necessary given the "Fifth

Amendment's otherwise jealous protection of the privilege

implicit in the act of production. In this case, the fact known

to the government that is implicit in the act of providing the

password for the devices is 'I, [the defendant], know the

password for these devices.'" Id.

(17a)

against giving self-incriminating testimony."

Id.

The

Commonwealth argues that this standard of proof should apply to

Gelfgatt motions.12

The parties have not identified, and we have not found, a

United States Supreme Court case -- in Fisher or any subsequent

cases -- or any United States Court of Appeals case that has

specifically addressed these issues.

We need not speculate what

the United States Supreme Court would decide is the appropriate

standard of proof under the Fifth Amendment, however, as we

conclude that art. 12 requires the Commonwealth to prove that a

defendant knows the password to decrypt an electronic device

beyond a reasonable doubt for the foregone conclusion exception

to apply.

See Lego v. Twomey, 404 U.S. 477, 489 (1972) ("Of

course, the States are free, pursuant to their own law, to adopt

a higher standard [of proof].

They may indeed differ as to the

appropriate resolution of the values they find at stake").

Burden of proof under art. 12.

The adoption of a

standard of proof "represents an attempt to instruct the fact

Professor Orin Kerr, as amicus curiae, argues in favor of

imposing the clear and convincing evidence standard under the

Fifth Amendment as well, advocating that the standard is both

"consistent with the Supreme Court decision" in Fisher "that

established the foregone conclusion doctrine," and "a fair

approximation of [the] burden needed to eliminate" the

prosecutorial advantage that can be obtained from compelling

testimonial acts of production. He takes no position, however,

on the appropriate standard under art. 12.

(18a)

finder concerning the degree of confidence our society thinks he

[or she] should have in the correctness of [his or her] factual

conclusions.'"

Doe, Sex Offender Registry Bd. No. 380316 v. Sex

Offender Registry Bd., 473 Mass. 297, 309 (2015), quoting In re

Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring).

criminal cases, we require the Commonwealth to prove all

essential elements of the crime beyond a reasonable doubt, while

generally requiring that other preliminary factual questions

related to the admission of evidence be proved only by a

preponderance of the evidence.

See, e.g., Commonwealth v.

Bright, 463 Mass. 421, 432 (2012) (admission of out-of-court

statements of coventurers); Commonwealth v. Rosenthal, 432 Mass.

124, 126-127 & n.4 (2000) (admission of prior bad acts).

have held, however, that some critical facts implicating a

defendant's constitutional rights require proof beyond a

reasonable doubt.

For example, we have held that the

Commonwealth must prove the voluntariness of a defendant's

confession beyond a reasonable doubt before the confession may

be placed before a jury.

Commonwealth v. Tavares, 385 Mass.

140, 152, cert. denied, 457 U.S. 1137 (1982).

Similarly, in

Commonwealth v. Day, 387 Mass. 915, 921 (1983), we held that the

Commonwealth must prove that a defendant's waiver of his or her

Miranda rights was made knowingly and intelligently beyond a

reasonable doubt.

In both circumstances, we concluded that the

(19a)

standard of proof beyond a reasonable doubt -- the highest

standard considered by courts in their function as fact finders

-- was necessary to protect the defendant's rights at issue.

In determining the reach of art. 12's protection of the

privilege against self-incrimination, we also are attentive to

the difference in wording of art. 12 from the Fifth Amendment.

Article 12 protects a defendant from being compelled to "furnish

evidence" against himself or herself, as opposed to becoming "a

witness against" himself or herself.

Based in part on this

textual difference, we have "consistently held that art. 12

requires a broader interpretation [of the right against selfincrimination] than that of the Fifth Amendment."13

Opinion of

the Justices, 412 Mass. 1201, 1210 (1992), quoting Attorney Gen.

v. Colleton, 387 Mass. 790, 796 (1982).

See Gelfgatt, 468 Mass.

at 525, 526 (art. 12 "demands a more expansive protection" but

nonetheless recognizing the foregone conclusion exception itself

and much of its "analytical" structure [citation omitted]);

Burgess, 426 Mass. at 218 ("Although art. 12 demands a more

expansive protection, it does not change the classification of

evidence to which the privilege applies.

Only that genre of

evidence having a testimonial or communicative nature is

Indeed, the Fifth Amendment requires the voluntariness of

a confession and the waiver of Miranda rights to be proved only

by a preponderance of the evidence. See Colorado v. Connelly,

479 U.S. 157, 168-169 (1986).

(20a)

protected under the privilege against self-incrimination"

[quotations and citation omitted]).

Accordingly, this court has

remained vigilant to safeguard against governmental conduct that

could infringe upon this privilege under art. 12.

With these considerations in mind, we conclude that when

the Commonwealth seeks a Gelfgatt order compelling a defendant

to decrypt an electronic device by entering a password, art. 12

requires that, for the foregone conclusion to apply, the

Commonwealth must prove beyond a reasonable doubt that the

defendant knows the password.14

Whatever the standard under the

The motion judge required the Commonwealth to prove the

defendant's knowledge of the password, and the existence of

information relevant to the charges against the defendant within

the LG phone, with "reasonable particularity." This standard

has been used to define the level of particularity required in

the identification of subpoenaed documents. See, e.g., Subpoena

Duces Tecum, 670 F.3d at 1349 ("We find no support in the record

for the conclusion that the Government, at the time it sought to

compel production [of the subpoenaed electronic files], knew to

any degree of particularity what, if anything, was hidden behind

the encrypted wall"). Here, neither documents nor the contents

of the LG phone are sought. As we explained supra, the

Commonwealth therefore need not prove any facts with respect to

the contents of the LG Phone. The only consideration is whether

the defendant knows the password to the encrypted device. The

reasonable particularity standard, which considers the level of

specificity with which the Commonwealth must describe sought

after evidence, is therefore inapt in the context of compelled

decryption. Indeed, as other courts have noted, the defendant

either knows the password or does not. His knowledge therefore

must be proved to a level of certainty, not described with a

level of specificity. See Spencer, U.S. Dist. Ct., No. 17-cr00259-CRB-1 ("While physical evidence may be described with more

or less specificity . . . a defendant's ability to decrypt is

not subject to the same sliding scale. He [or she] is either

able to do so, or he [or she] is not. Accordingly, the

(21a)

Fifth Amendment may be, requiring the Commonwealth to bear this

high burden is necessary to ensure that the art. 12 rights of

defendants are adequately protected, and reflects our

recognition that a "person's right to be free from selfincrimination is a fundamental principle of our system of

justice," and that we have imposed even higher standards than

the Fifth Amendment to protect that right.

455.

Borans, 388 Mass. at

See Addington v. Texas, 441 U.S. 418, 423 (1979) ("The

standard [of proof] serves to allocate the risk of error between

the litigants and to indicate the relative importance attached

to the ultimate decision"); Commonwealth v. Alicea, 464 Mass.

837, 841–842 (2013) (under art. 12, witness may not be compelled

to testify unless "it is perfectly clear, from a careful

consideration of all the circumstances in the case . . . that

the [testimony] cannot possibly have such tendency to

incriminate" [citation omitted]).