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SJC: Defendant may be compelled to give investigators access to his computer files

The Supreme Judicial Court ruled against a man charged with fraud who claimed that compelling him to use his computer passwords so that law enforcement officials could gain access to his digital files amounted to a violation of his Fifth Amendment right against self-incrimination.

The 5-2 decision issued Wednesday involves a Marblehead attorney named Leon Gelfgatt who was indicted in 2010 on charges of engaging in a mortgage fraud scheme. During a search of Gelfgatt's home, state troopers with a search warrant seized several computers that were believed to contain evidence about his activities. Gelfgatt told investigators that data on the computers were protected by encryption software and "no one is going to get it."


Lawyers from the office of Massachusetts Attorney General Martha Coakley later filed a motion in Superior Court to compel Gelfgatt to enter the password for his encryption software so that investigators could review his digital files.

The Superior Court judge denied the Commonwealth's motion, noting among other things, that the Commonwealth was essentially asking for the defendant's help in accessing potentially incriminating evidence that the Commonwealth had seized.

But in Wednesday's decision, the SJC said, "The judge's denial of the Commonwealth's motion to compel decryption is reversed, and this case is remanded to the Superior Court for further proceedings."

According to the SJC decision, compelling Gelfgatt to un-encrypt his computer files would not communicate facts to the Commonwealth "beyond what the defendant already had admitted to investigators."

One of Gelfgatt's lawyers, Stanley D. Helinski, said he planned to appeal the SJC decision.

"We are seeking to bring this to the US Supreme Court," said Helinski, who added that jurisdictions around the country are split over the question of when defendants should be compelled to give password access to computer files.

In an e-mail, Coakley spokesman Brad Puffer wrote: "Today's decision ensures that investigators can recover digital evidence when ordered by a court. We will now proceed with our criminal case against this attorney, who allegedly attempted to divert more than a million dollars from home sales to himself."


Chris Reidy can be reached at reidy@globe.com.