A child pornography suspect cannot be forced to reveal his computer password in order for investigators to access what they believe is illegal content, a Vermont federal judge ruled recently.
Requiring Sebastien Boucher to divulge his Z drive password "forces him to produce evidence that could be used to incriminate him," U.S. Magistrate Judge Jerome Niedermeier wrote in a Nov. 29 ruling.
Boucher was arrested in December 2006 when he and his father tried to cross the Canadian border into Vermont. Border officials inspected a laptop Boucher had in his backseat and allegedly found computer files with names that suggested their contents might be child pornography. Boucher told border officials that he sometimes inadvertently downloads child porn files, but deletes them when he realizes what they contain.
Further inspection of the computer – without the aid of a password - turned up numerous child-porn files and videos, according to border officials. Investigators subsequently shut down Boucher's computer and arrested him. But when the Vermont Department of Corrections tried to access the files later that month, investigators found that the Z drive had been protected by encryption algorithms from Pretty Good Software and was totally inaccessible.
The only means to access the password was to use an automated program that continually guesses possible password combinations, but that could take years based on similar investigations, according to Niedermeier's ruling.
The grand jury, therefore, subpoenaed Boucher and ordered him to provide the password for his computer files.
If Boucher reveals his password, however, he's basically admitting that he knows how to access the Z drive, Niedermeier wrote.
"The procedure is equivalent to asking Boucher, 'Do you know the password to the laptop?'" Niedermeier said. "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 argued that revealing the password compels Boucher to reveal something in his mind. The government has offered to allow Boucher to unlock his computer without revealing the actual password, but "Boucher would still be implicity indicating that he knows the password and that he has access ot the files," Niedermeier wrote. "The contents of Boucher's mind would still be displayed, and therefore the testimonial nature does not change merely because no one else will discover the password."
Niedermeier also dismissed the notion that the existence of child pornography on Boucher's computer is a foregone conclusion.
"While the government has seen some of the files on drive Z, it has not viewed all or even most of them," Niedermeier wrote.
If Boucher hands over his password, the government will likely uncover the files it has already seen, but also many it has not. The files the government has not seen could further incriminate Boucher, Niedermeier said.
Furthermore, "the password is not a physical thing," Niedermeier wrote. "The foregone conclusion doctrine does not apply to the production of non-physical evidence."
http://www.pcmag.com/article2/0,2704,2236166,00.asp
Fortunately, he didnt and is now locked up.
Im in two minds about this ruling actually, on one hand its nice to see the constitution being upheld but at the same time, we're talking about CP.
What do you folks think about this, should the guy have to hand over his password or not?
Regards,
Lee
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Originally Posted by Lee
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