UPDATE; Encrypted Laptop Poses Legal Dilemma

A bit of an update on this one:
Encrypted Laptop Poses Legal Dilemma
By JOHN CURRAN
Associated Press Writer

Posted: 17 minutes ago

BURLINGTON, Vt. - When Sebastien Boucher stopped at the U.S.-Canadian
border, agents who inspected his laptop said they found files containing
child pornography.

But when they tried to examine the images after his arrest, authorities were
stymied by a password-protected encryption program.

Now Boucher is caught in a cyber-age quandary: The government wants him to
give up the password, but doing so could violate his Fifth Amendment right
against self-incrimination by revealing the contents of the files.

Experts say the case could have broad computer privacy implications for
people who cross borders with computers, PDAs and other devices that are
subject to inspection.

"It's a very, very interesting and novel question, and the courts have never
really dealt with it," said Lee Tien, an attorney with the Electronic
Frontier Foundation, a San Francisco-based group focused on civil liberties
in the digital world.

For now, the law's on Boucher's side: A federal magistrate here has ruled
that forcing Boucher to surrender the password would be unconstitutional.

The case began December 17, 2006, when Boucher and his father were stopped
at a Derby Line, Vermont, checkpoint as they entered the U.S.

Boucher, a 30-year-old drywall installer in Derry, N.H., waived his Miranda
rights and cooperated with agents, telling them he downloads pornography
from news groups and sometimes unknowingly acquires images that contain
child pornography.

Boucher said he deletes those images when he realizes it, according to an
affidavit filed by Immigration and Customs Enforcement.

At the border, he helped an agent access the computer for an initial
inspection, which revealed files with names such as "Two year old being
raped during diaper change" and "pre teen bondage," according to the
affidavit.

Boucher, a Canadian with U.S. residency, was accused of transporting child
pornography in interstate or foreign commerce, which carries up to 20 years
in prison. He is free on his own recognizance.

The laptop was seized, but when an investigator later tried to access a
particular drive, he was thwarted by encryption software from a company
called Pretty Good Privacy, or PGP.

A grand jury subpoena to force Boucher to reveal the password was quashed by
federal Magistrate Jerome Niedermeier on November 29.

"Producing the password, as if it were a key to a locked container, forces
Boucher to produce the contents of his laptop," Niedermeier wrote. "The
password is not a physical thing. If Boucher knows the password, it only
exists in his mind."

Niedermeier said a Secret Service computer expert testified that the only
way to access Boucher's computer without knowing the password would be to
use an automated system that guesses passwords, but that process could take
years.

The government has appealed the ruling.

Neither defense attorney James Budreau nor Vermont U.S. Attorney Thomas
Anderson would discuss the charge.

"This has been the case we've all been expecting," said Michael Froomkin, a
professor at the University of Miami School of Law. "As encryption grows, it
was inevitable there'd be a case where the government wants someone's keys."

Authorities have encountered such dilemmas before, but have used other
methods to learn passwords, including installing surveillance devices that
capture keyboard commands. Sometimes investigators have given up before a
case reached the courts.

In a 2002 case, the FBI used a keyboard program to obtain gambling records
from the computer of Nicodemo Scarfo, Jr., the son of a jailed New Jersey
mob boss.

In another case, an officer found child pornography on the laptop of a man
who flew into Los Angeles International Airport from the Philippines. But a
federal judge later suppressed the evidence, ruling that electronic storage
devices are extensions of the human memory and should not be opened to
inspection without cause.

That case didn't hinge on a password, though.

Orin Kerr, a law professor and computer crime expert at George Washington
University, said the distinction that favors the government in Boucher's
case is that he initially cooperated and let the agent look at some of the
laptop's contents.

"The government can't make you give up your encryption password in most
cases. But if you tell them you have a password and that it unlocks that
computer, then at that point you no longer have the privilege," he said.

Tien, the attorney with the Electronic Frontier Foundation, said a person's
right to keep a password secret is a linchpin of the digital age.

Encryption is "really the only way you can secure information against prying
eyes," he said. "If it's too easy to compel people to produce their crypto
keys, it's not much of a protection."



http://wral.com/news/national_world/national/story/2408417/


.

Relevant Pages

  • In child porn case, a digital dilemma
    ... In child porn case, a digital dilemma ... officials, meanwhile, have said that encryption is allowing terrorists and ... Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, to ... The government has appealed, and the case is being investigated by a grand ...
    (alt.true-crime)
  • U.S. Seeks to Force Suspect to Reveal Password to Computer Files
    ... The federal government is asking a U.S. District Court in Vermont to order a man to type a password that would unlock files on his computer, despite his claim that doing so would constitute self-incrimination. ... The case, which involves suspected possession of child pornography, comes as more Americans turn to encryption to protect the privacy and security of files on their laptops and thumb drives. ... "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," the judge said. ... In a phone interview, Boucher said that he likes to download Japanese cartoons and occasionally adult pornography, but that he does not seek to view child porn. ...
    (alt.privacy)
  • Re: In Child Porn Case, a Digital Dilemma - USA
    ... The federal government is asking a U.S. District Court in Vermont to ... and civil liberties against the government's responsibility to protect ... Department officials, meanwhile, have said that encryption is allowing ... compelling Sebastien Boucher, ...
    (uk.legal)
  • FW: Judge orders defendant to decrypt PGP-protected laptop - CNET News
    ... I think that the fear that encryption schemes have generated in various ... contempt of court may well become the norm in cases where encryption has ... Which, unfortunately, the government doesn't want you to use to ... Judge orders defendant to decrypt PGP-protected laptop - CNET ...
    (Security-Basics)
  • RE: Need a Full Drive Encryption program
    ... Need a Full Drive Encryption program ... Booting from a linux or other boot disks will defeat most setups, ... Since the BIOS controls the access to the hard drive, upon power-up, the ... > the laptop back to IBM. ...
    (Security-Basics)
Loading