Re: In Child Porn Case, a Digital Dilemma - USA
- From: Webmanager_CritEst <webmanager@xxxxxxxxxxx>
- Date: Sat, 13 Sep 2008 02:12:38 -0700 (PDT)
On Sep 13, 9:48 am, "Retired" <reti...@xxxxxxxxxxxx> wrote:
"Webmanager_CritEst" <webmana...@xxxxxxxxxxx> wrote in message
news:ea40abb1-25c9-4a9a-bcdb-f76551f7ff4f@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
In Child Porn Case, a Digital Dilemma
U.S. Seeks to Force Suspect to Reveal Password to Computer Files
By Ellen Nakashima
Washington Post Staff Writer
Wednesday, January 16, 2008; Page A01
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, believed to be the first of its kind to reach this level,
raises a uniquely digital-age question about how to balance privacy
and civil liberties against the government's responsibility to protect
the public.
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. FBI and Justice
Department officials, meanwhile, have said that encryption is allowing
terrorists and criminals to communicate their plots covertly.
Criminals and terrorists are using "relatively inexpensive, off-the-
shelf encryption products," said John Miller, the FBI's assistant
director of public affairs. "When the intent . . . is purely to hide
evidence of a crime . . . there needs to be a logical and
constitutionally sound way for the courts" to allow law enforcement
access to the evidence, he said.
On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that
compelling Sebastien Boucher, a 30-year-old drywall installer who
lives in Vermont, to enter his password into his laptop would violate
his Fifth Amendment right against self-incrimination. "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.
The government has appealed, and the case is being investigated by a
grand jury, said Boucher's attorney, James Boudreau of Boston. He said
it would be "inappropriate" to comment while the case is pending.
Justice Department officials also declined to comment.
But the ruling has caused controversy.
"The consequence of this decision being upheld is that the government
would have to find other methods to get this information," said Marc
Rotenberg, executive director of the Electronic Privacy Information
Center. "But that's as it should be. That's what the Fifth Amendment
is intended to protect."
Mark D. Rasch, a privacy and technology expert with FTI Consulting and
a former federal prosecutor, said the ruling was "dangerous" for law
enforcement. "If it stands, it means that if you encrypt your
documents, the government cannot force you to decrypt them," he said.
"So you're going to see drug dealers and pedophiles encrypting their
documents, secure in the knowledge that the police can't get at them."
The case began Dec. 17, 2006, when Boucher, a Canadian citizen with
legal residency in the United States, was driving from Canada into
Vermont when he was stopped at the border by a U.S. Customs and Border
Protection inspector. The inspector searched Boucher's car and found a
laptop in the back seat, according to an affidavit filed with the
court by Mark Curtis, a special agent with Immigration and Customs
Enforcement who was called in by the inspector.
Boucher said the laptop was his, according to the affidavit. When the
inspector saw files with titles such as "Two-year-old being raped
during diaper change," he asked Boucher if the laptop contained child
pornography. Boucher said he did not know because he was not able to
check his temporary Internet files, according to the affidavit.
Curtis asked Boucher "to use the computer" to show him the files he
downloads. Curtis reviewed the video files, observing one that
appeared to be a preteen undressing and performing a sexual act, among
other graphic images, the affidavit says.
Boucher was arrested and charged with transportation of child
pornography in interstate or foreign commerce, which can carry a
sentence of up to 20 years in prison for a first offense.
The agents seized the laptop, and a Vermont Department of Corrections
investigator copied its contents. But the investigator could not get
access to the drive Z content because it was protected by Pretty Good
Privacy, a form of encryption software used by intelligence agencies
in the United States and around the world that is widely available
online. PGP, like all encryption algorithms, requires a password for
decryption.
For more than a year, the government has been unable to view drive Z.
A government computer forensics expert testified that it is "nearly
impossible" to access the files without the password, the judge wrote.
"There are no 'back doors' or secret entrances to access the files,"
he wrote. "The only way to get access without the password is to use
an automated system which repeatedly guesses passwords. According to
the government, the process to unlock drive Z could take years . . . "
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 .
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. He sometimes inadvertently receives images of
child pornography when he downloads the other material, but reviews
what he downloads to "clean out" the child porn, he said. It is not
illegal to possess animated child porn.
He said that he agreed to show the agents where he downloaded his
files "because I was sure that there was nothing bad in those files."
He also said that he felt coerced: "I felt like they really want to
force me to do it, like I have no choice."
Asked whether he typed in a password to unlock the drive so the agents
could view it, he replied: "I prefer not to answer that one."
Boucher added the encryption software to protect the rest of his
computer from viruses that might accompany the downloaded files, he
said.
Orin S. Kerr, an expert in computer crime law at George Washington
University, said that Boucher lost his Fifth Amendment privilege when
he admitted that it was his computer and that he stored images in the
encrypted part of the hard drive. "If you admit something to the
government, you give up the right against self-incrimination later
on," said Kerr, a former federal prosecutor.
Lee Tien, senior staff attorney at the Electronic Frontier Foundation,
a civil liberties group, said encryption is one of the few ways people
can protect what they write, read and watch online. "The last line of
defense really is you holding your own password," he said. "That's
what's at stake here."
Staff researcher Magda Jean-Louis contributed to this report.
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/15/AR200...
*****
WM
www.critest.com
Why do you think we hear so little about computer encryption in this
country?
If we all started to use it (and I do for personal files), the police would
need a lot more than 42 days to investigate the files on a computer.
So rather than encouraging its use, government departments make it sound too
difficult, and continue to loose unencrypted files.
B.
Well, they have RIPA, of course.
http://www.opsi.gov.uk/acts/acts2000/ukpga_20000023_en_8#pt3-pb1
WM
.
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- From: Webmanager_CritEst
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- From: Retired
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