By JACK BOUBOUSHIAN
(CN) – Forcing a criminal defendant to decrypt personal electronic data compels him to testify against himself in violation of the Fifth Amendment, two nonprofits said in a joint amicus brief.
The American Civil Liberties Union and Electronic Frontier Foundation filed an amicus brief in support of Leon Gelfgatt, whom the government seeks to compel to decrypt his own computers after law-enforcement personnel were unable to break the encryption themselves.
Gelfgatt, an attorney, was arrested in 2009 and charged with 17 counts of forgery connected to his alleged attempt at collecting $1.3 million from a mortgage-fraud scheme.
A superior court judge denied the government’s request, ruling that forcing Gelfgatt to decrypt the devices would amount to self-incrimination.
On appeal to the Massachusetts Supreme Court, the nonprofits urged the court to uphold the lower court’s ruling.
“Encrypting electronic data does not simply lock it up; it scrambles the data into an unreadable format. Likewise, decrypting data does not simply unlock it; rather, decryption transforms scrambled data into readable data,” the brief says. “Thus, as the Superior Court held, compelling someone to decrypt electronic data amounts to a command to explain the data. But, under the Fifth Amendment and article 12, that command is impermissible. The government cannot compel a defendant to turn unreadable data into data that can be used to put him in prison.” (Emphasis in original.)
The government’s assertion that requiring Gelfgatt to decrypt his devices would not “produce decrypted files” misunderstands what decryption does, according to the brief.
Prosecutors have promised not to look at Gelfgatt’s encryption key, which they admit is testimonial. But decryption is not, as the government claims, akin to entering the combination to a wall safe, the amici claim.
“Decryption is, instead, an act of translation and transformation,” the brief states. “Being compelled to decrypt a computer drive is like being forced to create, for the benefit of someone standing on the steps of the Boston Public Library, an English translation of every single library book written in Braille. … Similarly, decrypting electronic data does not simply unlock information. It creates a new, intelligible version of that information.” (Emphasis in original.)
The Superior Court motion judge, Justice Raymond Brassard, compared compelled decryption to finding documents 50 years ago that appear to be written in code or drawings that have a hidden meaning.
“Could the government, even though it had an interview with the defendant who acknowledged, yes, that’s a code, yes those symbols have meaning, but I decline to provide them to you, could the government force a defendant to provide such a code or such an explanation as to the meaning of drawings? I don’t think so,” Brassard said, in an opinion requested by the state.
The amici conclude: “Compelling a criminal defendant to decrypt electronic devices requires the defendant to use the contents of his mind – namely, his knowledge of a decryption key – to reassemble and unscramble information that can be used to incriminate him. For that reason, this court should hold that such compelled decryption implicates the privileges against self-incrimination guaranteed by article 12 and the Fifth Amendment.”
Cases such as these are taking root across the nation. The 11th Circuit linked forced decryption to Fifth Amendment violations in 2012, but a Milwaukee suspect was ordered to decrypt his computer earlier this year. A review of that order never came to be because the government ultimately figured out how to complete the decryption itself.