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More Boucher Coverage:
Today's Washington Post has a front-page story on United States v. Boucher, the Fifth-Amendment/crypto case I first blogged about here.
Richard Nieporent (mail):
I find the reasoning used to justify the difference between giving up a combination and handing over a key, assuming the key is hidden, to be logically inconsistent.

In his ruling, Niedermeier said forcing Boucher to enter his password would be like asking him to reveal the combination to a safe. The government can force a person to give up the key to a safe because a key is physical, not in a person's mind. But a person cannot be compelled to give up a safe combination because that would "convey the contents of one's mind,'' which is a "testimonial" act protected by the Fifth Amendment, Niedermeier said .

If a person can refuse to give up the combination because it conveys the content of one's mind, why would that act be any different than if the person hid the key and refused to reveal the location of it? Both the combination and the location of the key only exist inside the person's mind. In other words, why would forcing the person to reveal the secret location of the key be any different than forcing the person to reveal the combination?
1.16.2008 9:00am
Al Maviva (mail):
Computer files aren't inside one's head - they are physical things outside of the human body. Physical evidence. If providing law enforcement officers who have a warrant access to physical things in your possession is compelled self-incrimination, then so too is opening the door to your house when the same officers show up with a search warrant in hand. A suspect doesn't have to lead officers to the evidence, but the right to self incrimination generally does not also engender a right to effectively bar law enforcement access to physical evidence that could be incriminating.
1.16.2008 10:13am
Mike S.:
I thought the 5th Amendment was designed to prevent torturing people to extract confessions as was done in the Star Chamber.
I fail to see how the actions sought by the government are any different than a subpoena requiring the production of physical documents.
1.16.2008 10:25am
Ben P (mail):

Both the combination and the location of the key only exist inside the person's mind. In other words, why would forcing the person to reveal the secret location of the key be any different than forcing the person to reveal the combination?


The only real problem with this that I see is that if an individual refuses to give the combination of a safe containing incriminating evidence, I rather suspect the government would be capable of taking the entire safe and breaking it open physically.

Contempt citations if necessary at all, would be temporary until the evidence was recovered by other means.

The government in this case claims they are absolutely incapable of accessing this information. (A claim I find slightly dubious, but that's a different matter) In this case we literally do have the situation where the if he refuses he would be placed in contempt indefinitely.
1.16.2008 10:40am
Tracy Johnson (www):
So will this problem matter after the proposed monitoring changes are made? (Muauauauhahahaha...) But I suppose the ex post facto clause would not apply to this case?

* Monitoring the Internet

* US drafting plan to allow government access to any email or Web search

* NSA Must Examine All Internet Traffic to Prevent Cyber Nine-Eleven, Top Spy Says
1.16.2008 10:48am
Fury:

In this case we literally do have the situation where the if he refuses he would be placed in contempt indefinitely.


Professor Kerr, two questions - what remedy does the Federal Government have if Boucher either refuses or forgets the passphrase to decrypt the Z: drive? What if Boucher claims he cannot remember the passphrase?
1.16.2008 10:52am
duunes:
The problem is any safe can be cracked, any physical evidence can be had if the government knows where it is. Does a defendent have to reveal where evidence against him is hidden? Encypted files are hidden in plain sight. From the PGP software website Intro to Cryto the illustration of what it would take to crack a 128 bit key (password)



"Imagine the Earth covered with grass in a huge lawn. Also imagine that each blade of grass is a computer the can compute a billion keys per second. This cluster of computers would crack a 128-bit key on average in 1,000 years"



With a large enough password, the computer file will remain random bits on the computer drive. Doesn't the border guard's testimony remain heresay without the translation provided by the password? The key is locked in the defendant's mind. The privacy of one's thoughts is more important than the government's ability to prosecute.
1.16.2008 11:27am
Dave N (mail):
Boucher was and is both a moron and a creep. That said, the analogy to a safe or a front door is inapt because there you open the safe or open the front door not because you have to, but because if you do not the government has the legal authority to destroy the door in order to gain access.

In this case, the government has physical access to the laptop (and the mirror of the hard drive that I am sure they made). It certainly can use whatever tools are at its disposal to look at the contents.
1.16.2008 11:38am
David Schwartz (mail):
Suppose I kill someone and claim self defense. The body has not been found but I know where it is. Can the government "subpeona" the body from me?
1.16.2008 12:01pm
Ben P (mail):

From the PGP software website Intro to Cryto the illustration of what it would take to crack a 128 bit key (password)

"Imagine the Earth covered with grass in a huge lawn. Also imagine that each blade of grass is a computer the can compute a billion keys per second. This cluster of computers would crack a 128-bit key on average in 1,000 years"


I'm still slightly dubious about the government's testimony that there's "absolutely no way" form them to access the information short of brute forcing it.

But it may be the case that if such a backdoor does exist, it may very well be the will of those who know about it that it remain secret. (So those who use the software remain firm in the belief that is is "uncrackable."
1.16.2008 12:51pm
Mark Eckenwiler:
David S asks, Suppose I kill someone and claim self defense. The body has not been found but I know where it is. Can the government "subpeona" the body from me?

The act-of-production privilege would usually apply in such a case.

Note, by the way, that the Supreme Court has sliced Fifth Amendment doctrine very fine in this area, to wit:
In this action, we must decide whether a mother, the custodian of a child pursuant to a court order, may invoke the Fifth Amendment privilege against self-incrimination to resist an order of the Juvenile Court to produce the child. We hold that she may not.
Baltimore City DSS v. Bouknight, 493 U.S. 549 (1990).
1.16.2008 12:59pm
Richard Gould-Saltman (mail):
Per Tracey Johnson's second linked story:

"National Intelligence Director Mike McConnell is drawing up plans for cyberspace spying that would make the current debate on warrantless wiretaps look like a "walk in the park," according to an interview published in the New Yorker's print edition today.

Debate on the Foreign Intelligence Surveillance Act "will be a walk in the park compared to this," McConnell said. "this is going to be a goat rope on the Hill. My prediction is that we're going to screw around with this until something horrendous happens."


"goat rope?"???!
1.16.2008 1:00pm
duunes:
Ben P. If you read the article in the PGP website, you will see that no crypto scheme is seen as unbreakable. That is why PGP stands for "pretty good protection". They can only say that their protection has never been known to have been broken. If some government agency such as they NSA has broken it, the agency would never admit it because it would make headlines in the cryto community around the world. Then all the people they are spying on would instantly change to a diffrent scheme. Pornagraphy is meaningless compared to national security.
1.16.2008 1:45pm
john w. (mail):
Echoing the question that was raised previously, but never answered:

What is the worst thing that the Gov't can possibly do to this jerk if he just gives them an incorrect password and then says something like: " Well I *thought* that was correct, but the stress of being arrested must have played tricks on my memory, and now I'm not sure of anything."
1.16.2008 1:46pm
Paul Allen:

The act-of-production privilege would usually apply in such a case.


Right, the formal question here is whether the 'act-of-production' is sufficiently testimonial as to warrant immunity under the 5th amendment. The government argues 'no' because the officers already observed that the defendant knew the password which allowed access to the pictures. Thus the government claims that it makes no difference. Remember: the government has not established as fact that the pictures exist. They possess the computer, so merely putting the officers on the stand to testify to the existence of the pictures would be subject to a best evidence challenge and suppressed.

Consequently, I am of the opinion that the officer's prior observations on this point are irrelevant to the analysis. Thus entering the password is assuredly testimonial because it establishes as fact a point that the government would not otherwise be able to make: 1) the pictures exist and 2) the defend exercises control over them.

So the example of whether the government can subpoena the body from you is quite apropos.
1.16.2008 2:08pm
John A. Fleming (mail):
goat rope: a rodeo entertainment, where you send the youngsters out into the arena to catch a goat.
1.16.2008 2:10pm
Adam B. (www):
If the Fifth Amendment means anything, it's that you can't force someone to reveal the contents of his mind. Such forced speech is viscerally offensive, and fails to respect the dignity of the accused. To me, this is an easy case, and Orin's wrong. (And my decade-old student comment is right.)
1.16.2008 8:23pm
eyesay:
Regardless of the "correct" answer to whether there is a Constitutional right to refuse to provide the password and regardless of how the Roberts Supreme Court will rule on this question, there remain two other important issues.

First, given that possession of pornography that is produced without the participation of children under age 18 is legal, does it make sense to prosecute people who inadvertently possess child pornography? If the answer is yes, then anyone can get any John Doe into trouble by e-mailing Doe child pornography images and call the police to say "I have reason to believe that John Doe has child pornography on his computer." (I particularly envision law enforcement agencies or political officials doing the e-mailing.) Even if John Doe has already deleted the images, it will probably be possible for the authorities to undelete them and prosecute on the basis that John Doe did have the images on his computer in the past. So, as a matter of public policy, the claim of inadvertent possession ought to be a valid defense, and the prosecution should have the burden of proof that possession was not inadvertent.

Second, again given that possession of adult pornography is legal, and given Boucher's not-disproven claim that his intent was to possess only adult pornography and that he deleted child pornography whenever he found it, I believe that both Dave N's statement "Boucher was and is ... a creep" and john w.'s statement calling Boucher a "jerk" are (1) misinformed (2) cruel (3) prejudiced (4) lacking in foundation and (5) in violation of the Volokh Conspiracy comment policy that favors comments to be civil and no personal insults.
1.17.2008 4:38am
procrastinating clerk (mail):
I don't think Boucher would be able to object based on the best evidence rule since he is the one that could provide access to the documents, but refuses to do so.
1.17.2008 1:56pm