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Massachusetts high court says accused criminal must decrypt computers for police

By Elizabeth Barber

BOSTON (Reuters) - Police can order an accused criminal to decrypt his computer without violating his constitutional right against self-incrimination, Massachusetts' top court said on Wednesday.

In the latest U.S. ruling on the contentious issue, the 5-2 ruling by the Massachusetts Supreme Judicial Court reverses a lower court’s finding that police could not force Leon Gelfgatt, charged with mortgage fraud, to decrypt four computers seized in an investigation, since doing so would violate his Fifth Amendment right.

The court found that since Gelfgatt had told investigators that the computer belonged to him and that he had the encryption key, police could compel him to decrypt his files.

  “The Commonwealth's motion to compel decryption does not violate the defendant's rights under the Fifth Amendment because the defendant is only telling the government what it already knows,” according to the court’s opinion.

Gelfgatt, an attorney in Marblehead, Mass., about 18 miles (28 km) north of Boston, was indicted in 2010 for allegedly concocting a “sophisticated scheme” to reap $13 million through mortgage fraud, according to court documents.

State troopers seized four computers in the investigation, all of which were protected by encryption software that Gelfgatt refused to remove, saying “they essentially were asking for the defendant's help in putting him in jail,” according to court documents.

  In its decision, the high court did not specify if Gelfgatt would be compelled to decrypt his computers had he not made statements about owning the computer and having the key. That suggests that the case is unlikely to set a precedent for future cases, said Jessie Rossman, a staff attorney at the ACLU of Massachusetts, which submitted a brief in support of Gelfgatt.

“The majority’s opinion was very much linked to the fact of this case,” Rossman told Reuters.

  Stanley Helinski, a lawyer for Gelfgatt, said there is a lack of consensus among U.S. courts on whether compelling defendants to provide access by decrypting files effectively forces them to give prosecutors evidence against them. 

  “If you're asking the defendant to go into his brain and access the information, then you're violating his Fifth Amendment rights,” Helinski said. 

  In February 2012, the 11th Circuit Court of Appeals in Atlanta ruled that a defendant did not have to decrypt his hard drive, since doing so would violate his Fifth Amendment rights. But a federal judge in Wisconsin last spring ordered a Missouri man to decrypt his files, after he admitted that he owned the computer and had the key. 

(Editing by Barbara Goldberg and Cynthia Osterman)

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