> Accordingly, for the foregone conclusion exception to apply, the Commonwealth must establish that it already knows the testimony that is implicit in the act of the required production. 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. See id. See also Kerr, Compelled Decryption and the Privilege Against Self-incrimination, Tex. L. Rev. (forthcoming 2019) (manuscript at 18) ("the only assertion implied by entering the password is that the person compelled knows the password"). The Commonwealth must therefore establish that a defendant knows the password to decrypt an electronic device before his or her knowledge of the password can be deemed a foregone conclusion under the Fifth Amendment or art.
> The concurrence suggests that in addition to proving the defendant's knowledge of the password, the government must also demonstrate that it "already knows, with reasonable particularity, the existence and location of relevant, incriminating evidence it expects to find on that device." Without this added requirement, the concurrence argues, the government may obtain "unlimited . . . access, "post at note 4, to a "trove of potential incriminating and highly personal data on an electronic device" by proving only "that the accused knows the device's pass[word]," This is not correct.
It is well established that under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the police are ordinarily required to obtain a search warrant before a search of the contents of an electronic device may take place. See, e.g., Rileyv. California, 573 U.S. 373, 386(2014) (cell phones); Commonwealthv. Mauricio, 477 Mass. 588, 594 (2017) (digital cameras); Commonwealthv. McDermott, 448 Mass. 750, 776, cert. denied, 552 U.S. 910 (2007)(computers). Accordingly, in this case, the police were required to obtain a warrant before they could seek to search the contents of the LG phone, and they did so. The full protections against improper searches --probable cause to believe that a crime had been committed and that evidence of the crime would be found on the device --were required and, in the opinion of the clerk-magistrate who issued the search warrant, were satisfied here. The standard proposed by the concurrence conflates these protections with the protections afforded by art. 12of the Massachusetts Declaration of Rights. Our task under art. 12 in this context is to determine only what facts are conveyed to the government when a defendant is compelled to enter a password to decrypt an electronic device. As we have explained, the only fact conveyed by the physical act of
> The concurrence suggests that in addition to proving the defendant's knowledge of the password, the government must also demonstrate that it "already knows, with reasonable particularity, the existence and location of relevant, incriminating evidence it expects to find on that device." Without this added requirement, the concurrence argues, the government may obtain "unlimited . . . access, "post at note 4, to a "trove of potential incriminating and highly personal data on an electronic device" by proving only "that the accused knows the device's pass[word]," This is not correct.
It is well established that under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights, the police are ordinarily required to obtain a search warrant before a search of the contents of an electronic device may take place. See, e.g., Rileyv. California, 573 U.S. 373, 386(2014) (cell phones); Commonwealthv. Mauricio, 477 Mass. 588, 594 (2017) (digital cameras); Commonwealthv. McDermott, 448 Mass. 750, 776, cert. denied, 552 U.S. 910 (2007)(computers). Accordingly, in this case, the police were required to obtain a warrant before they could seek to search the contents of the LG phone, and they did so. The full protections against improper searches --probable cause to believe that a crime had been committed and that evidence of the crime would be found on the device --were required and, in the opinion of the clerk-magistrate who issued the search warrant, were satisfied here. The standard proposed by the concurrence conflates these protections with the protections afforded by art. 12of the Massachusetts Declaration of Rights. Our task under art. 12 in this context is to determine only what facts are conveyed to the government when a defendant is compelled to enter a password to decrypt an electronic device. As we have explained, the only fact conveyed by the physical act of