In October 2013, the ACLU filed this friend-of-the-court brief in Commonwealth v. Gelfgatt, a case about encryption. The basic question that interested us was whether a defendant can be forced to decrypt their electronic files. Along with Harvard's Berkman Center for Internet & Society and the Electronic Frontier Foundation, the ACLU said no: the right against self-incrimination protects defendants from being made to decrypt their own files. Because encryption scrambles data, encrypted data should be treated like a document that has been shredded. Even if the government can make a defendant turn over the shreds, it can’t make the defendant reassemble them.


Matthew Segal, Jessie Rossman (ACLU of Massachusetts); Nathan F. Wessler (ACLU); Kit Walsh (Berkman Center for Internet and Society); Hanni M. Fakhoury (Electronic Frontier Foundation)