Another court has decided compelled password production isn’t a violation of the Fifth Amendment. The Massachusetts case [PDF], titled “In the Matter of a Grand Jury Investigation,” concerns allegations of child abuse. The grand jury requested access to the contents of the suspect’s phone. The government obtained a warrant but sought a court order compelling the suspect to produce a password to unlock it. The court granted it and the suspect challenged the order after being hit with contempt charges for failing to turn over the password. (via FourthAmendment.com)

The court finds no problem with the government’s reasoning. According to the court, the ownership of the phone is the only “foregone conclusion” the government needs to reach.

Here, the Commonwealth demonstrated sufficient knowledge to show that the factual statements that the petitioner’s act of entering his PIN code would convey are foregone conclusions. As summarized in the grand jury materials submitted to the judge under seal, the Commonwealth already knew that the iPhone contained files that were relevant to its investigation based, in part, on information provided by the petitioner. In addition, the Commonwealth knew that a PIN code was necessary to access the iPhone, that the petitioner possessed and controlled the iPhone, and that the petitioner knows the PIN code and is able to enter it. Accordingly, the Commonwealth established independently and with specificity the authenticity, existence, and possession of the compelled information.

Because of this low bar, the government can seek compelled access, even if the production of the password might result in evidence the government can use against the suspect.

Thus, the order does not require the petitioner to communicate information that would fall within constitutional self-incrimination protection. The affidavit in support of the search warrant application established that the Commonwealth had probable cause to believe that the iPhone contained evidence of the crimes that are the subject of the grand jury investigation. The order simply allows execution of that warrant.

This result is unsurprising, considering the only thing the government must prove is the locked device is owned or controlled by the person refusing to provide a password. There’s a little variance between courts on the subject of “foregone conclusion,” but the bar remains low enough most prosecutors and law enforcement agencies should be able to hit it. Of course, there’s always a chance a person would rather spend an indefinite amount of time in jail on contempt charges rather than grant access to evidence to be used against them in a criminal trial.

This gives the government a considerable amount of leverage in cases like these. Considering courts are routinely sympathetic to “foregone conclusion” arguments, it’s odd the courts haven’t been hit with a massive influx of cases like these since the 2015 switch to default device encryption.

We hear from the FBI and prosecutors like Cy Vance that thousands of locked phones are sitting around law enforcement offices with no options for accessing their contents. It would seem compelled production is a pretty safe bet. Even if it doesn’t result in device access, it would at least result in contempt charges, which would probably motivate more people into allowing access. But we just haven’t seen that happen, which suggests the entities make the loudest noises about encryption aren’t making a good faith effort to use every option available to them.

https://www.mass.gov/files/documents/2017/12/11/16P0215.pdf