While I don’t practice criminal law, I thought this story was worth a quick mention because of its far-reaching implications for both privacy rights and criminal law.  A federal judge in Vermont has ordered a criminal defendant, Sebastien Boucher, to decrypt his hard drive so prosecutors can view the unencrypted files.  Specifically, the judge wants Boucher to type in his “PGP” password.  (”PGP” stands for “Pretty Good Privacy,” which is encryption software).

Boucher, a canadian citizen who is a permanent resident in the United States, was coming back from Canada in December of 2006 when a customs agent—without needing the password—searched his laptop and allegedly found thousands of images of adult and child pornography. 

Boucher was arrested, was given and waived his Miranda rights, and allegedly told customs agents that he might have downloaded child pornography.  His laptop was then shut down after his arrest.  It wasn’t until later when law enforcement tried to access his computer again that they learned the drive was encrypted with PGP and couldn’t be accessed without Boucher’s password.

A federal magistrate originally ruled in November of 2007 that the Fifth Amendment prevented Boucher from being forced to disclose his password.  As I’m sure most of you know, the Fifth Amendment is a cornerstone of the American criminal justice system which  provides that:  “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”  In other words, given the criminal charges against him, Boucher had a Fifth Amendment right to keep the files encrypted.

The federal district court judge overruled the magistrate and found that Boucher doesn’t have such a Fifth Amendment right.  According to the judge, Boucher “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.”  

This case will be appealed to the Second Circuit.  And no matter who wins there, an appeal to the Supreme Court seems likely given the importance of the issue.  As noted in the article, Homeland Security claims that it has the right to seize anyone’s laptop at the border for an indefinite period of time, so issues such as this take on special significance (although this policy is now being closely scrutinized by lawmakers, outside interest groups, and those within Homeland Security).  Stay tuned!