Judge orders defendant to decrypt his laptop
A Vermont judge has ruled that a man detained at the border for possible child pornography possession should be required to type in his PGP encryption key so that his computer can be examined.
Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop when he crossed into the United States from Canada, has been ordered by U.S. District Judge William Sessions to provide an unencrypted version of his Z drive to the court, according to a CNET article. Specifically, Sessions said, “Boucher is directed to provide an unencrypted version of the Z drive viewed by the ICE agent.”
It seems clear that the only way the defendant can do that is to type in the key required to remove the PGP privacy protection from the drive. It seems equally clear that Boucher should have Fifth Amendment rights to refuse, since doing so may incriminate him in this matter, and the refusal self-incrimination has long been held to be sacrosanct. What makes this case different?
Like many things legal, the answer is complicated. Is forcing Boucher to type in his passphrase, which would normally be shielded from and remain unknown to the government, a “testimonial” act, meaning that it would bring the Fifth Amendment into action? Or is it the same as requiring a criminal defendant to turn over documents of another sort, or to provide blood samples of fingerprints, none of which would trigger the Fifth Amendment? Judge sessions ruled that the latter was the case, a ruling that raises serious concerns about self-incrimination in an electronic age.
On one side of this issue, Sessions writes in his opinion, “Boucher’s act of producing an unencrypted version of the Z drive likewise is not necessary to authenticate it. He has already admitted to possession of the computer, and provided the government with access to the Z drive. The government has submitted that it can link Boucher with the files on his computer without making use of his production of an unencrypted version of the Z drive, and that it will not use his act of production as evidence of authentication.”
On the other side is an opinion, for example, by Barry Steinhardt director of the ACLU’s technology and liberty program. Steinhardt says that Boucher “should have been able to assert his Fifth Amendment rights. It’s not the same thing as asking him to turn over the Xeroxed copy of a document. There is no distinction between requiring a defendant to turn over the passphrase or type it in himself in front of a grand jury. Either of those things results in an encrypted set of files being brought into plain view.”
This is yet another case of old laws being called into question by new technology, as has happened in any number of arenas in recent years, perhaps most prominently in the area of intellectual property law. There is no good way to determine if the old law still works other than to try them case by case, concept by concept. The Boucher case is expected to end up in the U.S. Supreme court.
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March 20th, 2009
Dear Judge,
Go screw yourself, you frigging moron!