United States v. Boucher

"United States v. Boucher", 2007 WL 4246473, is a federal criminal case in Vermont, which was the first to directly address the question of whether a criminal defendant can be compelled to reveal his encryption passphrase, despite the U.S. Constitution Fifth Amendment protection against self-incrimination.

Facts

The defendant's laptop was inspected when he crossed the border into the U.S. from Canada. Images that allegedly contained child pornography were viewed by border agents who then seized his laptop. The laptop was protected by the PGP Disk encryption program and the government was subsequently unable to read the contents of the drive "Z:", containing the images.

A grand jury then issued a subpoena for the passphrase needed to recover the encryption key that protects the data.

Decision of the United States District Court

On November 29, 2007, U.S. Magistrate Judge Jerome Niedermeier of the United States District Court for the District of Vermont stated "Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him." [http://www.volokh.com/files/Boucher.pdf] Accordingly, Niedermeier quashed the subpoena.

On January 2, 2008, the United States appealed the magistrate's opinion to the District Court in a sealed motion (court docket, case #: 2:06-mj-00091-wks-jjn-1). [ [http://www.iht.com/articles/2008/01/07/america/legal.php U.S. courts consider legality of laptop inspections - International Herald Tribune ] ] The appeal is to be heard by U.S. District Judge William K. Sessions. [ [http://www.news.com/8301-13578_3-9854034-38.html Feds appeal loss in PGP compelled-passphrase case | The Iconoclast - politics, law, and technology - CNET News.com ] ]

ee also

*"Doe v. United States", ussc|487|201|1988
*"United States v. Hubbell", ussc|530|27|2000
*"United States v. Arnold" [ [http://www.eff.org/cases/us-v-arnold Electronic Frontier Foundation: U.S. v. Arnold] ]

References

Further reading

*cite journal |last=Casey |first=Eoghan |authorlink= |coauthors=Stellatos, Gerasimos J. |year=2008 |month= |title=The impact of full disk encryption on digital forensics |journal=Operating Systems Review |volume=42 |issue=3 |pages=93–98 |doi=10.1145/1368506.1368519 |url= |accessdate= |quote=
* cite journal | last = Clemens | first = Aaron M. | authorlink = | coauthors = | year = 2004 | month = | title = No Computer Exception to the Constitution: The Fifth Amendment Protects Against Compelled Production of an Encrypted Document or Private Key | journal = Journal of Law and Technology | volume = 8 | issue = 1 | pages = | id = | url = http://www.lawtechjournal.com/articles/2004/02_040413_clemens.php | accessdate = | quote =
*cite news |first=Ellen |last=Nakashima |authorlink= |coauthors= |title=In Child Porn Case, a Digital Dilemma: U.S. Seeks to Force Suspect to Reveal Password to Computer Files |url=http://www.washingtonpost.com/wp-dyn/content/article/2008/01/15/AR2008011503663.html?nav=hcmodule |work=Washington Post |publisher= |date=January 16, 2008 |accessdate=
*cite journal |last=Sergienko |first=Greg S. |authorlink= |coauthors= |year=1996 |month= |title=Self Incrimination and Cryptographic Keys |journal=Richmond Journal of Law and Technology |volume=2 |issue= |pages=1 |id= |url=http://www.richmond.edu/jolt/v2i1/sergienko.html |accessdate= |quote=

External links

* [http://www.news.com/8301-13578_3-9834495-38.html Judge: Man can't be forced to divulge encryption passphrase] , by Declan McCullagh, CNet News
* [http://www.news.com/8301-13578_3-9854034-38.html Feds appeal loss in PGP compelled-passphrase case] , by Declan McCullagh, CNet News
* [https://ecf.vtd.uscourts.gov/doc1/1851273316 Opinion and Order In re: Grand Jury Subpoena] , Nov. 29, 2007, Case No. 2:06-mj-91, document 35. PACER account registration required, but there is no charge for viewing this document.