CP Case Raises Complex 5th Amendment Issues

Q Boyer
BURLINGTON, Vt. — The Justice Department has appealed a decision by a federal judge in Vermont who ruled that compelling a suspect to enter his password in order to allow investigators to access encrypted files on his laptop was a violation of the man’s 5th Amendment right against self-incrimination.

The suspect in the case is Sebastien Boucher, a Canadian citizen living in Vermont, who was stopped for inspection by a U.S. border agent when crossing back into the U.S. from Canada in December 2006.

According to an affidavit filed in the case, a border inspector spotted a laptop in Boucher’s vehicle during a secondary search, which Boucher acknowledged was his computer. After conducting an examination of the computer, the inspector found that there were approximately “34,000 images of various nature” on the laptop’s Z drive, including some with file names that indicated the image depicted child pornography.

When the inspector asked Boucher whether his computer contained child pornography images, Boucher responded that he did not know because he was unable to check his temporary Internet files. The inspector then called in Mark Curtis, an agent from the Immigration and Customs Enforcement (ICE) section of the Department of Homeland Security.

After observing the suspicious file names, Curtis read Boucher his Miranda rights and Boucher signed a waiver form. Curtis asked Boucher about one of the suspicious file names, and Boucher responded that he frequently visits online newsgroups and downloads many files, later deleting child porn files if and when he finds them. Boucher added that he downloads files from his home computer, and then transfers them to his laptop for easy access while traveling.

Curtis then asked Boucher to use the laptop to show him the files. Boucher opened several files for Curtis, including a file entitled “Pre-teen bondage.” At that point, according to the affidavit, Curtis “resumed control of the computer” and began reviewing additional video files on the laptop.

After concluding that the material in the suspicious files met the definition of “child pornography” under 18 U.S.C. §2256(8), Curtis seized the computer, and Boucher was arrested and charged with transportation of child pornography in interstate or foreign commerce.

Two weeks later, when investigators tried to make a mirror-image of the laptop’s hard drive, they were unable to access the files that had been observed by Agent Curtis. The drive had been encrypted using the encryption software Pretty Good Privacy, and could not be opened without Boucher’s password. Boucher had entered the password to allow Curtis to look at the files during the original search at the border, but shutting down the laptop had effectively locked investigators out of the drive again.

A grand jury issued a subpoena to compel Boucher to provide investigators with the password, but Boucher’s lawyers filed a motion in response arguing that forcing Boucher to divulge his password would violate his 5th Amendment right against self-incrimination.

While multiple U.S. courts have upheld the right of customs agents to search the contents of computers, and suspects can be legally compelled to provide physical evidence like DNA samples and fingerprints, the government conceded in a hearing last year that forcing Boucher to verbally disclose his password would be “testimonial,” and was prohibited under the 5th Amendment.

Government prosecutors offered an alternative: Boucher could be compelled to enter his password, without anyone seeing it or otherwise finding out what the password was, and unlock the disk without incriminating himself. Prosecutors promised that the fact that Boucher knew the password would not be used against him.

The government’s case hit a roadblock, however, when U.S. Magistrate Judge Jerome Niedermeier rejected their argument.

“Entering a password into the computer implicitly communicates facts,” Niedermeier wrote in his decision. “By entering the password Boucher would be disclosing the fact that he knows the password and has control over the files on drive Z. The procedure is equivalent to asking Boucher, ‘Do you know the password to the laptop?’ If Boucher does know the password, he would be faced with the forbidden trilemma; incriminate himself, lie under oath, or find himself in contempt of court.”

Niedermeier also rebuffed the argument that the testimonial facts at issue were a foregone conclusion, and therefore not covered by the 5th Amendment.

“While the government has seen some of the files on drive Z, it has not viewed all or even most of them,” Niedermeier wrote. “While the government may know of the existence and location of the files it has previously viewed, it does not know of the existence of other files on drive Z that may contain incriminating material. By compelling entry of the password the government would be compelling production of all the files on drive Z, both known and unknown… [T]he files the government has not seen could add much to the sum total of the government’s information. Therefore, the foregone conclusion doctrine does not apply and the act of production privilege remains.”

Niedermeier noted in his decision that in distinguishing testimonial and non-testimonial acts, the U.S. Supreme Court has “has compared revealing the combination to a wall safe to surrendering the key to a strongbox…. [t]he combination conveys the contents of one’s mind; the key does not and is therefore not testimonial…. A password, like a combination, is in the suspect’s mind, and is therefore testimonial and beyond the reach of the grand jury subpoena.

Niedermeier granted the defense’s motion to quash the subpoena, and legal experts are now divided as to whether the judge came to the proper conclusion in his decision.

Orin Kerr, a law professor at George Washington University who regularly contributes to UCLA law professor Eugene Volokh’s respected legal blog The Volokh Consipiracy, recently wrote that his “sense is that Judge Niedermeier is wrong.”

“True, being forced to enter in the password has a communicative aspect to it,” Kerr wrote. “It says, ‘I know the password to drive Z on my laptop.’ But based on the specific facts of the case, don’t we already know that? Isn’t it a ‘foregone conclusion’ under the Fisher case?”

Kerr reasoned that as Boucher had already admitted that it was his laptop, described how he used it, agreed to show border agents the contents of drive Z, the subpoena didn’t require him to do anything that he hadn’t already consented to.

“The subpoena is simply trying to get Boucher to take the officers back to where he had already taken them before: through the passphrase so they can access the files,” Kerr argued.

Attorney Reed Lee of JD Obenberger and Associates told XBIZ that he didn’t think the situation was quite that clear cut.

Lee said that while it’s true that the 5th Amendment protection is primarily against “compelled verbal self-incriminatory testimony” and it’s the “oral element that is the central element being protected” he concurs with Niedermeier that compelling Boucher to provide his password is more like forcing him to divulge the combination to a safe than it is like demanding that he produce the key to a lockbox.

”At its bottom, this case does seem to raise the most central 5th Amendment issue; compelled testimony that is self-incriminatory in nature,” Lee said.

Lee said that the problem with Kerr’s analysis is that while Boucher may have consented to showing the border agents the files during the initial search, that concession on his part is not tantamount to a continuing consent to search, or a guarantee that he would supply the password again in the future.

Whatever analogies one makes, it’s far from an open and shut case, Lee said.

“It’s a very complex case, involving some highly technical aspects of 5th Amendment law,” Lee said. “I think the court ruled correctly, but I’m not surprised that the decision is controversial.”