High bar set to compel decryption of cellphone.


Byline: Kris Olson

Prosecutors must establish beyond a reasonable doubt that a defendant is able to decrypt a cellphone if they are to obtain an order to compel him to do so, the Supreme Judicial Court has decided.

While defense attorneys and others who have been watching Commonwealth v. Jones closely are grateful that such a high standard has been set, many are also echoing concerns expressed by Justice Barbara A. Lenk in her concurring opinion.

The court in Jones had three questions reported to it by a single justice who had been asked to review the trial judge's denial of the prosecution's "Gelfgatt motion." The motion refers to the SJC's 2014 decision that opened the door to forcing a defendant to decrypt his electronic files, so long as the defendant's knowledge of how to do so is a "foregone conclusion" and does not violate his rights against self-incrimination.

Superior Court Judge Peter B. Krupp had twice denied the prosecution's Gelfgatt motions, finding it had failed to "demonstrate with reasonable particularity" that the defendant possessed the password for the phone.

[box type="shadow" align="alignright" width="325px" ]When 'Gelfgatt' motion renewed, info needn't be 'not known or reasonably available'

In Commonwealth v. Jones, the Supreme Judicial Court was also presented the following question: "When a judge denies a 'Gelfgatt' motion filed by the Commonwealth and the Commonwealth thereafter renews its motion and provides additional supporting information ... 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?"

Superior Court Judge Peter B. Krupp had said he "was not inclined to" consider the additional factual information absent a showing that the new evidence was not otherwise available to the prosecution, but the SJC said he erred in reaching that conclusion.

It is well established that the power of a judge to consider a renewed motion is not restricted to circumstances where new facts have been raised, the SJC noted.

"This is particularly true, we conclude, in the context of Gelfgatt motions, which arise in the course of ongoing investigations, often at early stages of such investigations, where the facts are still being investigated and developed," Justice Scott L. Kafker wrote.

The SJC found that Krupp's decision had been based on a mistaken analogy to motions to suppress, where it has imposed tighter constraints on renewed filings.

"We believe that Gelfgatt motions are more aptly compared to search warrant applications, which can be renewed without similar constraints," Kafker wrote.[/box]

Justice Scott L. Kafker noted that only the Northern District of California, in United...

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