By June 26, 2014 0 Comments Read More →

State Supreme Court Rules You CAN Be FORCED To Decrypt Data On Laptop Or Phone

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Thanks to Edward Snowden’s revelations about the NSA’s virtually limitless spying capabilities, Internet security experts have been emphasizing the importance of encrypting data on laptops, phones and portable drives.

But now the Massachusetts Supreme Judicial Court has just ruled that a criminal defendant can be legally forced to decrypt the contents of their electronic devises.

The ruling comes in conclusion to a case where a lawyer was arrested back in 2009 for allegedly participating in a mortgage fraud scheme. Leon I. Gelfgatt, the defendant, admitted to the Massachusetts state police that he had done work with the company Baylor Holdings.

He asserted that the correspondences related to these dealings were encrypted on the hard drives of all of his computers and that he would not decrypt them, though he was able to if he wanted to.

The MJSC, the highest court in Massachusetts, asked whether entering the password to decrypt these contents was an act of self-incrimination, and a violation of Gelfgatt’s Fifth Amendment rights.

But in a 5-2 decision, the court rules that this did not violate his rights, and that he could in fact be legally forced to decrypt the information.

“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,” the MJSC’s ruling concluded.

“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. 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.”

“According to the Commonwealth, the encryption software on the computers is virtually impossible to circumvent. Its manufacturer touts the fact that it does not contain a ‘back door’ that would allow access to data by anyone other than the authorized user. Thus, the Commonwealth states, the files on the four computers cannot be accessed and viewed unless the authorized user first enters the correct password to unlock the encryption,” the ruling continued.

Justice Barbara Lenk wrote the dissenting opinion in the case, saying “On this view, he would not be asserting that he owned them, had exclusive use and control of them, or was familiar with any of the files on them; that certain files contained the incriminating evidence sought; or that the documents were authentic. Such is far from the case.”

“In taking this view of the matter, the court maintains that the defendant merely would be entering a password, which he would not disclose to the Commonwealth, into the encryption program, and would not thereby be selecting and producing any documents. Such an artificial distinction between the act of entering the decryption key and the inevitable result of decrypting the devices, and thereby producing the files for inspection, obfuscates the reality of what the defendant is being compelled to disclose.”

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