The state Supreme Judicial Court on Wednesday ordered a Middlesex County sex trafficking defendant to provide his cellphone password to law enforcement, in a ruling one justice warned “sounds the death knell” for protection against forced self-incrimination.
The ruling concerns a man named Dennis Jones, who is charged with trafficking a person for sexual servitude and deriving support from the earnings of a prostitute.
In a 7-0 ruling, the SJC found that compelling Jones to give up his password doesn’t violate his Fifth Amendment rights because prosecutors proved beyond a reasonable doubt that his knowledge of the code was a “foregone conclusion and not subject to the protections of the Fifth Amendment and art. 12” of the Massachusetts Declaration of Rights.
Justice Scott L. Kafker, in a 34-page opinion for the panel, wrote that police obtained a warrant to conduct a forensic search of Jones’s LG phone but were blocked from doing so because of the password protection.
Prosecutors, Kafker wrote, argued that “compelling the defendant to enter the password would not force him to incriminate himself because the act itself would not reveal any information that the Commonwealth did not already know.”
The SJC on Wednesday sided with the government.
Kafker wrote that prosecutors can “compel testimonial acts of production without violating a defendant’s rights” if “the ‘facts conveyed [by the act] already are known to the government, such that the individual ‘adds little or nothing to the sum total of the Government’s information.’ . . . In the context of compelled decryption, the only fact conveyed by compelling a defendant to enter the password to an encrypted electronic device is that the defendant knows the password, and can therefore access the device.”
Kafker added that the government must show “beyond a reasonable doubt that the defendant knows the password,” a burden that prosecutors met in the Jones case.
In addition, Kafker wrote, the alleged trafficking victim told police Jones had “induced her” into working as a prostitute in exchange for housing. Police also reviewed her phone, which revealed “several communications between her phone and the LG phone related to prostitution, including screenshots of customer communications sent to the LG phone in response to online advertisements seeking to arrange prostitution transactions with” the alleged victim, Kafker wrote.
James A. Reidy, a lawyer for Jones, said in a telephone interview that he was disappointed by the SJC’s decision. He said the SJC ignored findings of a lower court judge who had questioned the alleged victim’s credibility.
Middlesex District Attorney Marian T. Ryan’s office didn’t respond to a request for comment.
Justice Barbara A. Lenk, who voted with the rest of her colleagues to compel Jones to provide the passcode, submitted a separate opinion outlining her support for the ruling, while also voicing concerns about its implications.
“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.”
Proving that, Lenk wrote, “is not a difficult endeavor, and in my judgment, the Fifth Amendment and” state constitution “demand more. That is, before the government may compel an accused’s assistance in building a case against that accused, the government must demonstrate that it already knows, with reasonable particularity, of files on the device relevant to the offenses charged, and that the defendant knows the passcode to unlock them. Because I conclude that the government here met those burdens, I join in the court’s result.”
Reidy said he thought Lenk’s concerns were “well stated.”
“I’m not quite sure this decision provides a lot of guidance going forward with how to handle these issues,” he said. “For example, what procedure should a court use in determining whether the Commonwealth has met its burden of proof beyond a reasonable doubt? . . . It seems to me that if [witness] veracity is an issue, that’s something that should be addressed in the trial court below.”
Andrew Crocker, a senior staff attorney with the Electronic Frontier Foundation, an advocacy group focused on civil liberties in the digital realm, was also troubled by the ruling.
Merely requiring proof that a defendant knows the password to a phone, he said, “really puts people’s personal data” and potentially self-incriminating testimony “at the mercy of police.”
“I think that’s a continuing problem,” Crocker said, adding that he was “heartened” that the SJC at least ruled that prosecutors must prove a defendant’s knowledge of the passcode beyond a reasonable doubt.