Privacy Law

Novel Issue in Cyber Porn Case: Can Man Take Fifth re Password?


A child pornography case concerning illicit images allegedly stored in the defendant’s laptop computer has created what experts say is a novel Fifth Amendment issue. Can the defendant assert his Fifth Amendment right against self-incrimination to stymie federal agents seeking his password in order to access the encryption-protected images and use them as evidence?

So far, a federal magistrate has ruled in favor of defendant Sebastien Boucher, 30, reports the Associated Press.

“Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop,” writes Magistrate Jerome Niedermeier in a Nov. 29 opinion quashing a grand jury subpoena requiring the New Hampshire drywall installer to reveal the secret code that unlocks the computer. “The password is not a physical thing. If Boucher knows the password, it only exists in his mind.”

Under prior case law, according to Niedermeier, courts have distinguished between requiring a defendant to produce a key to a safe, which is constitutional, and requiring a defendant to reveal a safe combination, which is “testimonial” evidence covered by the 5th Amendment, explains the Washington Post in an earlier article.

Authorities know of the alleged child porn only because Boucher admitted that he had it on his computer when he crossed into Vermont from Canada in late 2006, waiving his Miranda rights at the time, the news agency reports. (A law professor and former prosecutor quoted by the Post says Boucher may have waived his Fifth Amendment rights concerning the password by doing so.)

Authorities seized the computer, and have charged Boucher, who was released on his own recognizance, with transporting child pornography in interstate or foreign commerce. But when they tried to access the claimed illicit images, they couldn’t get past Boucher’s Pretty Good Privacy encryption software.

Attorney Lee Tien of the Electronic Frontier Foundation in San Francisco tells AP that the issue is novel and very interesting.

“This has been the case we’ve all been expecting,” adds Michael Froomkin of the University of Miami School of Law. “As encryption grows, it was inevitable there’d be a case where the government wants someone’s keys.”

As discussed in earlier ABAJournal.com posts, a lawsuit was to be filed today by civil liberties groups seeking information about U.S. search policies concerning laptops and other electronic equipment, and the San Francisco-based 9th U.S. Circuit Court of Appeals appears poised to rule in favor of the government on the constitutionality of computer searches in another border-search laptop child-porn case. However, the computerized images in that 9th Circuit case apparently weren’t protected by passworded encryption software, according to a Security & Privacy magazine article.

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