Federal prosecutors are 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, involving child pornography, is believed to be the first of its kind. Coming at a time when users are increasingly turning to encryption to protect the contents of their computers, it raises a novel issue concerning how to balance privacy rights and civil liberties against the government’s responsibility to protect the public. Federal officials say that encryption is allowing criminals to communicate their plots in secret, and that there needs to be a way for the courts to permit law enforcement to access the evidence.
On November 29, Magistrate Judge Jerome Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old Vermonter, 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 ruling, which the government has appealed, is causing controversy. Civil liberties advocates say the decision was exactly right, and that the government will simply have to find other methods to get encrypted information. But others argue that the ruling is dangerous for law enforcement, because it will spur terrorists, drug dealers, and pedophiles to encrypt their documents, knowing that the police can’t access them.
Boucher was arrested in 2006, when driving across the border from Canada into Vermont. An inspection of his car by a U.S. Customs and Border Protection inspector revealed a laptop with a video file that appeared to be a preteen undressing and performing a sexual act, among other graphic images, according to the government’s affidavit.
The agents seized the laptop but could not get access to the content on the drive Z because it was protected by Pretty Good Privacy, popular encryption software that requires a password for decryption.
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 hand over the key to a safe because a key is physical, not in a person’s mind. But it cannot compel a person to reveal 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.
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