In the United States it is enormously difficult to remove allegedly defamatory information from the internet. A victim can take the expensive and time-consuming step of suing the author for defamation in court. However, even if a court rules that the statement is defamatory—that is, that the published statement is false and harmful to the subject’s reputation—the victim’s remedy is usually monetary damages. U.S. courts do not generally order that the speech be removed from the internet, out of First Amendment concerns regarding the prior restraint of speech. Even if a victim were to present the website’s registrar with the court’s finding of defamation, registrars are protected by the Communications Decency Act and are under no obligation to remove the offending content (although some registrars will, as a matter of internal policy).
The Texas Supreme Court recently issued a pioneering opinion which alters the legal landscape, at least as it applies to cases brought in Texas. In Kinney v. Barnes plaintiff Robert Kinney, a legal recruiter, left his employer BCG and started a competing company. BCG’s president Andrew Barnes later posted a statement on various websites accusing Kinney of participating in a kickback scheme. Kinney sued, not for monetary damages, but for an injunction requiring Barnes to remove the defamatory statements, and prohibiting him from making similar statements in the future. The trial court declined to grant the injunction and granted Barnes summary judgment on this issue, and the court of appeal affirmed, both finding that an injunction would be an unconstitutional restraint on prior speech.
On appeal to the Texas Supreme Court, however, Texas’ highest court distinguished between statements that had already been published and those that might be made in the future. The court declared that where a statement has been adjudicated by a court and found to be defamatory, the court may issue an injunction requiring the author to remove the speech from places where he had already published it. The decision does not limit an individual’s freedom to make the same or similar statements in the future because, “[g]iven the inherently contextual nature of defamatory speech…the same statement made at a different time and in a different context may no longer be actionable.” The Texas Supreme Court believes that this limited remedy strikes the proper balance between removing unprotected defamatory speech and upholding individual’s rights to speak freely in the future.
This case is seen as a victory for victims of defamatory speech, whose personal or business reputations have been ruined by false accusations that remain on the internet even after a court found them to be untrue, harmful, and unprotected. While the case only serves as biding precedent in Texas, other courts may look to this decision for guidance when determining how to protect individuals’ or businesses’ reputations from false past attacks while preserving the freedom of speech to criticize or otherwise speak about those same people or entities in the future.
This summer BNP Paribas, one of the five largest banks in the world, agreed to a $9 billion settlement with the U.S. Department of Justice. The settlement figure may seem nothing short of economic shock and awe; indeed it was the largest criminal penalty in U.S. history. What could justify such a staggering fine and was the DoJ too heavy-handed in its tactics against the French-based bank?
The $9 billion figure was not created out of thin air. It correlates to the value of transactions that BNPP helped to push through the U.S. financial system on behalf of Sudanese, Cuban and Iranian interests. These countries have been subject to U.S. sanctions under the U.S. International Emergency Economic Powers Act (IEEPA). The sanctions restrict, among other things, trade and investment activities involving the U.S. financial systems, including processing U.S. dollar transactions through the States. BNPP chose to ignore those sanctions. What’s worse, the Statement of Facts that the DoJ published with its press release states that BNPP used cover payments to conceal the transactions it processed through its New York location and other U.S.-based banks. It also removed identifying information about the sanctioned entities and used complicated payment structures in order to prevent the transactions from being blocked when transmitted through the U.S. BNPP helped to finance oil and petrol exports for both Sudan and Iran. And the bank’s involvement in Sudan has been instrumental to the country’s foreign commerce market. All told, BNPP’s actions effectively undermined the U.S. sanctions, opening the U.S. financial system to those countries.
BNPP’s actions justify DoJ prosecution as U.S. authorities certainly have jurisdiction over U.S.-based activities. A stiff penalty also seems in order, given the bank’s blatant disregard for both the legal violations and their ramifications. The DoJ quotes a May 2007 BNPP Paris executive memorandum: “In a context where the International Community puts pressure to bring an end to the dramatic situation in Darfur, no one would understand why BNP Paribas persists [in Sudan] which could be interpreted as supporting the leaders in place.”
But did the DoJ go too far when it imposed $9 billion in sanctions? As of the date of the settlement, the fine more than doubled the enforcement agency’s highest criminal penalty on record. (Of course, big settlements with banks are becoming the norm: the DoJ recently settled with Bank of America for $16.5+ billion and with JP Morgan Chase for $13 billion.) The $9 billion penalty may not have had the desired impact of shock and awe the U.S. may have sought. Instead of being perceived as a show of force with a deterrent effect, some of the international community has reacted with disdain. Not surprisingly, this includes the French, who have been quite vocal about their feelings. The French Foreign Minister, Laurent Fabius, said the fine was an “unfair and unilateral decision.” The French Finance Minister Michel Sapin questioned its legality by pointing out that the offending transactions were not illegal under French law.
It is not as though the U.S. is jumping across the pond and punishing a French bank on French soil for activity in France. The actions in question took place through U.S. markets and therefore make U.S. prosecution justifiable. But the French finance minister’s statement demonstrates the U.S.’s waning credibility abroad. Sapin did not stop at the BNPP settlement – he went on to question the entire monetary regime based upon the U.S. dollar: “Shouldn’t the euro be more important in the global economy?” The U.S. should not ignore this growing antipathy. Nor should we take for granted our economic or political authority. Examples like this settlement, or the largely resented Foreign Account Tax Compliance Act, may not be seen as a show of force but rather as an act of bullying. As we throw our weight around, others are considering whether the cost of doing business with us is just too high. If we keep it up, we could find ourselves at a table of one.
When it comes to a conviction, or even an arrest, the collateral consequences that are sometimes overlooked by client and counsel can be extremely damaging, especially when dealing with government agencies and programs.
One such set of consequences is unique to contractors who do business with federal or state governments. Because even a plea to a criminal conviction represents a person’s affirmative statement of the underlying facts, that can lead to a proceeding to suspend or debar (that is, prohibit) the contractor from federal or state business. A government agency may issue a notice of suspension or debarment based on the criminal conviction alone, if the statute provides for such a basis of debarment. Moreover, in some circumstances, a government agency may issue a notice of suspension or debarment based on the underlying conduct (which the plea or conviction affirms as true) that poses a risk to the integrity of government contractors. Thus, even if a government contractor facing serious charges and a lengthy trial enters a plea to a less serious charge, that plea may cause the debarment of the government contractor and possibly deal a fatal blow to its business based on the conduct on which it was based.
Another example of an unforeseen consequence is when a person applies for one of the various government programs that are a “privilege” and not a right. The U.S. Customs and Border Protection (CBP) has implemented Trusted Traveler Programs, such as the Global Entry program, which allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. There is no right to participate in that program; rather, it is a privilege granted to individuals upon acceptance by the CBP. There is an application process for entry into the program, and, the CBP explicitly warns that applicants may not qualify if they have been convicted of any criminal offense or have pending criminal charges or outstanding warrants. Notably, as with similar statutes or prohibitions, there is no end date for when the CBP will stop considering the criminal conviction. Therefore, the criminal conviction will likely act as a lifetime bar to gaining acceptance into this program and into similar types of programs.
Collateral consequences are increasingly becoming an important area of law due to the fact that the total number of collateral consequences has increased tremendously in recent years. This requires a broad understanding of many areas, which is contrary to the trend in law practice of specialization in niche practice areas. Unfortunately, counsel are often completely unaware of the potential collateral consequences in practice areas outside their scope of practice. With funding provided by a DOJ grant and other sources, the ABA has developed an interactive tool called the National Inventory of the Collateral Consequences of Conviction (available at www.abacollateralconsequences.org), which provides a database of the sanctions and restrictions in each state. This is a useful tool for both counsel and client in understanding the full gamut of collateral consequences resulting from a criminal conviction.
The Foreign Account Tax Compliance Act (FATCA) has been billed as the U.S.’s bold effort to go after tax dodgers and cheats. The picture painted is that of greedy rich people secreting their fortunes in offshore accounts and away from poor Uncle Sam. But this is not a fair representation of FATCA’s impact or reach. Since the law took effect July 31, there is increasing blowback as people of varied means are feeling the repercussions.
One of the most publicized reactions is a lawsuit filed in Canada by two Canadian-American citizens with negligible ties to the U.S. In their suit against the Canadian Attorney General, the plaintiffs contest the validity of the Canada-U.S. agreement to enforce FATCA in their country. The plaintiffs claim that the agreement violates provisions of the Canadian Charter of Rights and Freedoms and that it undermines the “principle that Canada will not forfeit its sovereignty to a foreign state.” The complaint, drafted by notable Canadian attorneys Joseph Arvay and David Gruber, alleges that Canada’s enforcement of the U.S. law violates affected people’s right to liberty and security by:
- failing to protect them from unreasonable search and seizure, and
- discriminating against them on the grounds of their country of birth.
The plaintiffs, Virginia Hillis and Gwendolyn Louise Deegan, are U.S. citizens through no willful action. They were born in the U.S. but both left the States for Canada when they were five years old. Neither has a U.S. passport and neither has significant contacts with the U.S. They are what you could call “Accidental Americans” – people who happen to be citizens because they were born here but otherwise identify with another country of citizenship. The plaintiffs hardly fit the image of the fancy tax cheats FATCA purports to target.
Here are some examples of people falling under FATCA’s umbrella of U.S. tax cheats:
(1) Accidental Americans – dual citizens with nominal ties to the U.S. (e.g., they were born in the U.S.) who have not opted to undertake the tedious and costly process of renouncing citizenship. The group includes others who only recently learned they are U.S. citizens – many thought they effectively renounced citizenship but find themselves repatriated through changes in U.S. law or policy.
(2) Snowbirds – citizens of other countries (generally Canadians) who think they do not face U.S. tax liability because they spend less than 183 days a year in the U.S. The 183-day maximum has been understood by many to be the U.S. tax code’s threshold to avoid tax liability. However, they are learning that the threshold is not so straightforward. A “substantial presence test” also factors U.S. presence the year prior and year subsequent to a tax year, reducing the amount of time people can regularly visit in the U.S. without tax penalty.
(3) Non-Americans who have ever worked in the U.S. or appear to have a “substantial” connection to the U.S. Since the law does not fully define what “substantial” means for reporting purposes, lots people are getting swallowed up into compliance and reporting requirements.
But also getting caught up in compliance requirements are Non-Americans who have joint accounts with a U.S. citizen, such as non-American spouses and “at-risk” trusts and investments with no U.S. ties. A recent article by the U.K.’s Telegraph noted that thousands of British families’ trusts are being reviewed for possible ties to the U.S. Many of these are run-of-the-mill family trusts. Regardless of outcome the customers are being billed for the review some £200-500 (roughly $300-750).
Compliance costs for the 77,000 + financial institutions worldwide that have signed onto to FATCA enforcement are staggering. It has been estimated that the 30 largest non-U.S. banks alone will be saddled with $7.5 billion related expenses. These costs are going to have to be absorbed by someone… and will invariably be passed on to those institutions’ customers in the form of increased fees for products and services.
FATCA is an expensive headache for Americans and non-Americans, financial institutions and foreign governments. It is running roughshod over other countries’ privacy laws, banking laws and national sovereignty. While these countries and banks have buckled to U.S. pressure because otherwise they would face 30% penalties on U.S.-generated payments, some may start to consider whether compliance is worth it. As highlighted in the Huffington Post, the Japanese Bankers Association is weighing whether divesting of U.S. assets may make better economic sense. Not only may countries sever their U.S. ties, U.S. citizens are renouncing their citizenship in record numbers. In a sign of poor-sportsmanship, the State Department has recently raised fees for renunciation more 400%, from $450 to $2,350; Senator Charles Schumer (D-NY) has introduced a bill to double exit taxes. Who would have figured that the U.S. would become the “Hotel California” from the 1972 Eagles’ album: you can check out anytime you like, but you can never leave.
Prosecutors and often even judges do not appreciate the collateral consequences of a criminal conviction, regardless of whether it results from a trial or a plea agreement. While the direct consequences of conviction are obvious – such as jail time, probation requirements, and fines – the collateral consequences are more insidious. Yet sometimes those consequences can have an even greater impact on a person’s life than the sentence meted out by the court. These consequences may be difficult to identify, though they may be mandated by statutes and regulations scattered throughout state and federal law, and may arise from a misdemeanor conviction, or even a simple arrest.
One of the most serious collateral consequences of a criminal conviction is its effect on a person’s immigration status, and thanks to the United States Supreme Court, it is now one that has great visibility for most defense counsel. In Padilla v. Kentucky (130 S. Ct. 1473 (2010)), the U.S. Supreme Court held that the Sixth Amendment’s guarantee of effective assistance of counsel requires that a defendant must be provided with notice of deportation consequences of a guilty plea he or she is considering. This issue arises most frequently in the context of drug cases because of the draconian treatment of such conduct under U.S. law for non-citizens. Since the Supreme Court’s opinion in Padilla, many courts now specifically include in their allocution during guilty pleas a specific notice regarding the possibility that a guilty plea may result in immigration consequences for the, including deportation, reversal of naturalization and non-admission.
But there are many other collateral consequences that are routine, but are not always referenced in a plea agreement and are often not recognized by defendants. Under federal law, a person convicted of a felony may not possess a firearm – indeed, possession of a firearm by a felon constitutes a felony violation itself. And many state laws require that defendants who commit sex crimes register with local authorities. A conviction for driving under the influence of alcohol or drugs may result in the administrative loss of driving privileges for a period of time.
There are even more serious collateral consequences that persist for long periods of time involving exclusion from employment prospects, eligibility for professional licensing and access to government benefits. For instance, employees in the nursing care industry are generally subject to background checks by their employer and are required to maintain certain licensing in their individual capacity as a condition to working in the industry. But even a relatively minor criminal conviction will raise a red flag on the background check and foil any chance of receiving a license. Similarly, a state agency may refuse to issue a business an operating license if some of its higher level employees have criminal convictions. Not only does this restriction limit a person’s employment prospects, but more broadly, they also harm the person’s chances of earning any livelihood because this person will also be prevented from owning any business that required such a state license.
For these reasons, it is absolutely essential that when considering whether to accept a plea agreement that both counsel and the client understand the consequences of the guilty plea in order to properly evaluate the benefits and the collateral damage of accepting a guilty plea versus proceeding to trial. And it is essential that counsel advise their clients in an effective manner of the consequences of a conviction that may persist long after the clients leave the courthouse or the jail.
Criminal defendants face a wide range of consequences for their alleged actions. The high emotional and financial cost of defending a case may pale in comparison to the personal toll resulting from a conviction and the associated direct consequences including fines, penalties, remuneration, and incarceration. For most offenders, however, the longest-lasting consequence of all is the criminal record which they carry with them for life. Some collateral consequences of a criminal conviction are imposed by law—for instance, convicted felons lose the right to vote and are ineligible for welfare benefits and federal student loans. (A database of collateral consequences by state can be found here.) Others are imposed by society. Nowhere is this stigma more apparent or restrictive than in the ex-offender’s job search when, in trying to become productive members of society, they are routinely screened out of the workforce due to criminal history questions on initial job applications.
On July 14, the D.C. Council unanimously approved the Fair Criminal Record Screening Act of 2014, a bill which requires private employers to consider job applicants based on their merits and qualifications prior to considering their criminal convictions. The Act applies to all private employers in DC employing 10 or more persons, with the exception of employers providing programs, services, or direct care to minors or vulnerable adults. The Act prohibits employers from asking, in connection with a person’s employment, any questions relating to arrests or criminal accusations not currently pending which did not end in conviction. Additionally, private DC employers may not ask job seekers any questions about criminal convictions during the initial application process. Rather, employers may only ask an applicant about his or her criminal convictions after the employer makes a conditional job offer. Once the applicant discloses any convictions, the employer may only rescind the offer for a legitimate business reason, taking into consideration the seriousness of the offense and the bearing it may have on employment, among other factors. The D.C. Mayor must sign the bill prior to it becoming law.
This is the latest development in the “Ban the Box” movement which has gained traction in many states and municipalities–so called because of the “check here if you have ever been convicted of a crime” box commonly found on job applications. We wrote about Baltimore’s initiative in a previous post. The ban the box movement is an effort to restrict initial job application questions about criminal history and thereby increase the odds that former offenders become productive members of society by re-entering the workforce. A July 2014 National Employment Law Project report (not yet updated with the passage of DC’s bill) found that 12 states and 66 municipalities have instituted some legal measure restricting the timing of inquiries into criminal history during the job application process. The laws vary as to specifics. In some jurisdictions, employers can make an inquiry into the applicant’s criminal history after an initial round of screening or interviews but prior to making a conditional offer. In some jurisdictions the law applies only to public sector employers, while in others it also applies to private sector employers of a certain size. Some employers, such as retail giants Target and Wal-Mart, have independently instituted similar policies company-wide.
The Ban the Box movement has garnered criticism in some quarters for being a superficial fix which will ultimately deter employers from hiring at all. Employers, the reasoning goes, will incur unnecessary expense in interviewing candidates and making conditional offers which they later rescind upon doing a criminal records check. Then the employer could face litigation over whether the offer was rescinded based on a “legitimate business reason.” The candidate also allegedly loses out by counting on a job offer that doesn’t result in a job.
While there will be, no doubt, instances in which former offenders are disappointed by rescinded job offers, this concern is outweighed by the opportunity to receive fair consideration of their qualifications in the first place. And a positive result on a criminal records check does not automatically mean that an employer has wasted time and resources in the hiring process; an individualized inquiry into the circumstances of the offense may not change the hiring decision at all, especially for offenses that are older or relatively minor. To the extent that banning the box marginally increases the length or cost of a hiring process, more and more governing bodies are determining that this is an acceptable cost in furtherance of the greater good. And in D.C., complaints about criminal records-based hiring decisions are referred to the Office of Human Rights for administrative remedies rather than being resolved through litigation.
The Council’s approval of the Act is a great step forward for the estimated 60,000 D.C. residents with criminal records, as well as for non-residents employed in the District. The Ban the Box movement gives former offenders a much-needed opportunity to show that they are more than their records, and to be considered for employment on their merits, in context.
Is it possible to commit money laundering with virtual currency? At least one federal judge thinks so. Last month, U.S. District Judge Katherine Forrest refused to dismiss a money laundering charge premised on the use of a Bitcoin-based payment system. She is the first federal judge to hold that the federal money laundering statute is broad enough to encompass the use of Bitcoin in financial transactions.
In February 2014, a grand jury in the Southern District of New York returned an indictment charging Ross William Ulbricht on four counts for participation in a narcotics trafficking conspiracy, a continuing criminal enterprise, a computer-hacking conspiracy, and a money-laundering conspiracy. The charges stemmed from Ulbricht’s alleged creation and operation of an underground website known as Silk Road. Prosecutors alleged that Ulbricht designed, launched, and administered the online marketplace to facilitate the anonymous sale of illegal drugs, malicious computer software, and other illicit goods and services. Two features of the site allegedly protected buyers and sellers from government surveillance and tracking. First, Silk Road operated using Tor—software and a network that allows for anonymous, untraceable Internet browsing. The site also required all purchases to be made in Bitcoin, an anonymous, untraceable form of payment.
Ulbricht asked the court to dismiss all four counts, including the charge for participation in a money-laundering conspiracy. Ulbricht argued that the money-laundering charge should be dismissed on grounds that Bitcoin transactions are not “financial transactions,” as defined under the statute.
The federal money laundering statute prohibits “financial transactions” involving the proceeds of illegal activity when conducted by a person who intends to further the illegal activity or who knows the transaction is designed to conceal material information about the proceeds, such as their source or location. The “financial transaction” requirement may be satisfied by: (i) a transaction involving the movement of funds by wire or other means; (ii) a transaction involving a monetary instrument; or (iii) a transaction involving the transfer of certain types of property. To fall within the second definition, the transaction must involve a “monetary instrument”—i.e., U.S. or foreign coin or currency, checks, money orders, investment securities, or negotiable instruments.
Ulbricht argued for dismissal of the money-laundering charge based on the second definition. Specifically, he contended that Bitcoins do not meet the statutory definition for monetary instruments, so the alleged transactions cannot form the basis for a money-laundering conviction.
But according to Judge Forrest, Ulbricht missed the mark by focusing exclusively on the second definition of “financial transaction.” She prefaced her analysis by acknowledging that anonymous financial transactions are not per se criminal. But in Ulbricht’s case, Bitcoins were problematic because they were alleged to be the medium of exchange for commercial transactions related to illegal activity—narcotics trafficking and computer hacking. The prosecution had ample support for its claim that Ulbricht chose Bitcoin as Silk Road’s exclusive payment system in order to conceal the nature of those transactions.
The court also explained that the government had alleged the necessary elements for a money-laundering conspiracy regardless of whether Bitcoin was deemed to be a “monetary instrument.” The statute defines “financial transaction” more broadly to include any transaction involving the movement of funds by wire or otherwise. Bitcoins were deemed to fit this broad definition because they are used as funds to pay directly for things or as a medium of exchange and can be converted into currency which can pay for things. As Judge Forrest noted, “the only value of Bitcoin lies in its ability to pay for things . . . . The money laundering statute is broad enough to encompass the use of Bitcoins in financial transactions. Any other reading would – in light of Bitcoins’ sole raison d’etre – be nonsensical.”
There is an inescapable irony here. While proponents of Bitcoin favor recognition of the currency as a financial instrument, large operators like Ulbricht argue the opposite.
Photo Credit: Meinzahn
Three more casinos are set to close in Atlantic City. Unions, politicians and lobbyists are pointing fingers. One thing is for certain, newly introduced online gaming legislation is not to blame. If experts had been paying attention to the trends, they would have introduced regulated online gaming into New Jersey years ago…
Want to know more? Read the full post on Ifrah Law’s new iGaming Blog
Severely ill patients in New York State are celebrating Gov. Andrew Cuomo’s signature of a bill that legalized medical marijuana in New York for many severely ill patients. As noted by Assembly Speaker Silver in his remarks, “With this agreement, we are assuring access to that much-needed relief while ensuring the tightest possible regulation and state supervision.” Indeed, the New York bill does contain many restrictions on the use of medical marijuana, which were necessary in order to gain the agreement of Governor Cuomo for the passage of the bill.
For instance, the bill’s coverage is limited to “certified patients” that submit an application and receive their “registry identification card.” The requirements are extensive and include: patients are residents of New York, are receiving care and treatment in New York, and have a “serious condition”, which is limited to “severe debilitating or life-threatening conditions” like cancer, ALS, Parkinson’s disease, HIV/AIDS, Lou Gehrig’s disease, Huntington’s disease, epilepsy, neuropathic diseases, and multiple sclerosis or as determined by the commissioner of public health. A certified patient is also required to “possess his or her registry identification card at all times when in immediate possession of marijuana.”
Additionally, the final bill included a compromise provision, again on Gov. Cuomo’s insistence, that prohibits the possession of medical marijuana “if it is smoked, consumed, vaporized, or grown in a public place.” Instead, patients will take medical marijuana through an oil-based vaporizer, edible, or otherwise ingest the drug like any other pill.
Further, medical marijuana can only be administered by “practitioners”- i.e. doctors who are registered with the NYS Health Department to issue a patient certification, and, “no person may be a designated caregiver for more than five certified patients at one time.”
There are also restrictions on the manufacturers. Medical marijuana can only be sold by a “registered organization” that manufactures and dispenses in “an indoor, enclosed, secure facility located in New York state.” In addition to future regulations to be issued by the commissioner, a registered organization must possess “good moral character”, “sufficient land, buildings, … and equipment to properly carry on the activity described in the application”, or, post a $2M bond. Interestingly, the per dose price is also set by the commissioner so that this enterprise may not become some profit-making engine.
As a necessary assurance, the bill provides that certified patients, practitioners, and registered organizations are not subject to civil, criminal, or disciplinary proceedings because of their practices in accordance with the bill.
Finally, there is a seven year sunset provision in the bill, which essentially means the bill would need to be reauthorized, meaning that if it is not, medical marijuana will no longer be legal. The bill also contains a provision that authorizes the governor to terminate the medical marijuana program at any time if it is deemed to pose a public safety issue.
Despite these restrictions, Governor Cuomo stated: “Medical marijuana has the capacity to do a lot of good for a lot of people.” We wholeheartedly concur and feel there is no more appropriate ending than with the words of Assembly Speaker Silver: “This is a great day for New Yorkers.”
 Note: The New York bill refers to “marihuana”, but we have used the commonly known “marijuana” throughout for ease of reading.
Recently the Massachusetts Supreme Judicial Court ruled that under certain circumstances, a court may compel a criminal defendant to provide the password to encrypted digital evidence without violating the defendant’s constitutional rights. This is an increasingly prevalent issue that has divided courts across the country and may be presented to the United States Supreme Court for review soon.
Leon Gelfgatt was indicted in 2010 for allegedly operating a mortgage fraud scheme that fraudulently collected more than $13 million. During the investigation, Massachusetts state troopers seized four computers, all of which were protected by encryption software that Gelfgatt refused to remove. Lawyers for the Commonwealth of Massachusetts filed a motion in Superior Court asking the court to compel Gelfgatt to enter the password for his encryption software so that law enforcement could review the contents. The Superior Court denied the motion, stating that the Commonwealth was asking for the defendant’s assistance in accessing potentially incriminating evidence.
In a 5-2 ruling, the Massachusetts Supreme Court reversed the lower court ruling and held that police could compel Gelfgatt to decrypt his files, because he told investigators that the computer belonged to him and he had the encryption key. The majority opinion reasoned that Gelfgatt’s disclosure to investigators that he had the password to access the encrypted materials was sufficient to satisfy the “foregone conclusion” exception to the Fifth Amendment protection against self-incrimination. The court did not specify if Gelfgatt would have been compelled to decrypt the computers if he did not tell law enforcement that he owned the computers and had the ability to decrypt them, which may limit the reach of this opinion.
In a strong dissenting opinion, two justices found compelling a criminal defendant to decrypt the files is the functional equivalent to forced self-incrimination.
After the decision, one of Gelfgatt’s lawyers indicated that they planned to appeal the decision to the U.S. Supreme Court, which has not yet considered the issue that has divided jurisdictions across the country. In 2012, the U.S. Court of Appeals for the Eleventh Circuit held that a man under criminal investigation could not be compelled to decrypt his computer hard drives for the government without a showing by the government of specific knowledge about the contents of the hard drive, an opinion referred to by the dissenting opinion in this case.
In a time when law enforcement is increasingly relying on digital evidence in building cases against criminal defendants, issues regarding encryption and password protected materials will continue to arise. We hope the Supreme Court will grant an appeal and clarify that law enforcement cannot compel criminal defendants to decrypt files without violating the Fifth Amendment right against self-incrimination.