Prosecutors must show beyond a reasonable doubt that the
defendant knows the password, according to the Massachusetts Supreme Judicial
Court. Prosecutors met that burden in the case of Dennis Jones, who was accused
of sex trafficking a woman he met online, the court said. Courthouse
News Service and the Boston
Globe covered the March
6 decision.
The court said proof of the defendant’s knowledge of the
password satisfies the “foregone conclusion” exception to the privilege against
self-incrimination. The exception allows defendants to be compelled to disclose
information that the government already knows.
The foregone conclusion exception originated in a Supreme
Court case involving compelled production of documents in response to
a government subpoena. Several federal courts have extended the exception to
encrypted electronic devices, including the 11th U.S. Circuit Court of Appeals
at Atlanta and the 3rd Circuit at Philadelphia.
The Massachusetts court said that a defendant forced to
enter a password discloses only that they know the password and can access the
device. Proof that the defendant knows the password is enough, the court
reasoned.
A concurring justice, Barbara Lenk, would have gone further
by requiring the government to also prove that it knows the existence of
relevant, incriminating evidence it expects to find on the device.
“I think that compelled decryption of a cellular telephone
or comparable device implicates more than just its passcode; what the
government seeks is access to the files on the device, which the government
believes will aid in inculpating the defendant,” Lenk wrote.
“The court’s decision today sounds the death knell
for a constitutional protection against compelled self-incrimination in the
digital age,” Lenk wrote. “After today’s decision, before the government may
order an individual to provide it with unencrypted access to a trove of
potential incriminating and highly personal data on an electronic device, all
that the government must demonstrate is that the accused knows the device’s
passcode.”
Despite her misgivings, Lenk concurred in the court’s
judgment because prosecutors had demonstrated their knowledge of the existence
and location of specific files on the phone.
The supreme judicial court had extended the foregone
exclusion exception to compelled disclosure of passwords in a
2014 case involving an attorney who
was accused of trying to divert mortgage payoff funds to himself
through a sophisticated scheme using his computers.
The new case considered what proof is needed to qualify for
the exception.
Prosecutors had argued that they have to show only proof of
knowledge of the password, using a clear and convincing evidence standard. The
Massachusetts Supreme Judicial Court opted for the higher reasonable doubt
standard, finding that it was required by the state constitution’s protections
against self-incrimination.
The standard of proof was satisfied in Jones’ case, the
court said. Jones had the cellphone in his pants pocket when he was arrested;
he had made statements to police characterizing the phone’s number as
his number; subscriber information linked the phone to Jones; and the sex
trafficking victim described Jones’ use of the phone, the court said.
“Indeed, short of a direct admission, or an observation of
the defendant entering the password himself and seeing the phone unlock, it is
hard to imagine more conclusive evidence of the defendant’s knowledge of the LG
phone’s password,” the court said.
To read more CLICK HERE
No comments:
Post a Comment