JUdge orders criminal defendant to decrypt hard drive

**gst528i** · 02-26-2009, 11:36 PM

federal judge has ordered a criminal defendant to decrypt his hard drive by typing
Judge orders defendant to decrypt PGP-protected laptop

by Declan McCullagh
February 26, 2009

A federal judge has ordered a criminal defendant to decrypt his hard drive by typing in his PGP passphrase so prosecutors can view the unencrypted files, a ruling that raises serious concerns about self-incrimination in an electronic age.

In an abrupt reversal, U.S. District Judge William Sessions in Vermont ruled that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, does not have a Fifth Amendment right to keep the files encrypted.

Quote:
"Boucher is directed to provide an unencrypted version of the Z drive viewed by the ICE agent," Sessions wrote in an opinion last week, referring to Homeland Security's Immigration and Customs Enforcement bureau. Police claim to have viewed illegal images on the laptop at the border, but say they couldn't access the Z: drive when they tried again nine days after Boucher was arrested.
Boucher's attorney, Jim Budreau, already has filed an appeal to the Second Circuit. That makes it likely to turn into a precedent-setting case that creates new ground rules for electronic privacy, especially since Homeland Security claims the right to seize laptops at the border for an indefinite period. Budreau was out of the office on Thursday and could not immediately be reached for comment.

The Fifth Amendment says nobody can be "compelled in any criminal case to be a witness against himself," which Magistrate Judge Jerome Niedermeier ruled in November 2007 prevented Boucher from being forced to divulge his passphrase to prosecutors.

Originally, the U.S. Department of Justice asked the magistrate judge to enforce a subpoena requiring Boucher to turn over "passwords used or associated with" the computer. In their appeal to Sessions, prosecutors narrowed their request and said they only want Boucher to decrypt the contents of his hard drive before the grand jury, apparently by typing in his passphrase in front of them.

At issue in this case is whether forcing Boucher to type in that PGP passphrase--which would be shielded from and remain unknown to the government--is "testimonial," meaning that it triggers Fifth Amendment protections. The counterargument is that since defendants can be compelled to turn over a key to a safe filled with incriminating documents, or provide fingerprints, blood samples, or voice recordings, unlocking a partially-encrypted hard drive is no different.

Barry Steinhardt, director of the ACLU's technology and liberty program, said on Thursday that the opinion reached the wrong conclusion and that Boucher "should have been able to assert his Fifth Amendment rights. It's not the same thing as asking him to turn over the Xeroxed copy of a document."

"There is no distinction" between requiring a defendant to turn over the passphrase or type it in himself in front of a grand jury, Steinhardt said. "Either of those things results in an encrypted set of files being brought into plain view."

Judge Sessions reached his conclusion by citing a Second Circuit case, U.S. v. Fox, that said the act of producing documents in response to a subpoena may communicate incriminating facts in two ways: first, if the government doesn't know where the incriminating files are, or second, if turning them over would "implicitly authenticate" them.

Because the Justice Department believes it can link Boucher with the files through another method, it's agreed not to formally use the fact of his typing in the passphrase against him. (The other method appears to be having the ICE agent testify that certain images were on the laptop when viewed at the border.)

Sessions wrote: "Boucher's act of producing an unencrypted version of the Z drive likewise is not necessary to authenticate it. He has already admitted to possession of the computer, and provided the government with access to the Z drive. The government has submitted that it can link Boucher with the files on his computer without making use of his production of an unencrypted version of the Z drive, and that it will not use his act of production as evidence of authentication."

The defendant is a Canadian citizen who is a lawful permanent resident in the United States and lived with his father in Derry, N.H.

Boucher was initially arrested when customs agents stopped him and searched his laptop when he and his father crossed the border from Canada on December 17, 2006. An officer opened the laptop, accessed the files without a password or passphrase, and allegedly discovered "thousands of images of adult pornography and animation depicting adult and child pornography." Boucher was read his Miranda rights, waived them, and allegedly told the customs agents that he may have downloaded child pornography. But then--and this is key--the laptop was shut down after Boucher was arrested.

It wasn't until December 26 that a Vermont Department of Corrections officer tried to access the laptop--prosecutors obtained a subpoena on December 19--and found that the Z: drive was encrypted with PGP, or Pretty Good Privacy. (PGP sells software, including whole disk encryption and drive-specific encryption, which can be configured to forget the passphrase after a certain time. That would effectively re-encrypt the Z: drive.)

**illwillogical** · 02-26-2009, 11:44 PM

Originally Posted by gst528i

federal judge has ordered a criminal defendant to decrypt his hard drive by typing
Judge orders defendant to decrypt PGP-protected laptop

by Declan McCullagh
February 26, 2009

A federal judge has ordered a criminal defendant to decrypt his hard drive by typing in his PGP passphrase so prosecutors can view the unencrypted files, a ruling that raises serious concerns about self-incrimination in an electronic age.

In an abrupt reversal, U.S. District Judge William Sessions in Vermont ruled that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, does not have a Fifth Amendment right to keep the files encrypted.

Quote:
"Boucher is directed to provide an unencrypted version of the Z drive viewed by the ICE agent," Sessions wrote in an opinion last week, referring to Homeland Security's Immigration and Customs Enforcement bureau. Police claim to have viewed illegal images on the laptop at the border, but say they couldn't access the Z: drive when they tried again nine days after Boucher was arrested.
Boucher's attorney, Jim Budreau, already has filed an appeal to the Second Circuit. That makes it likely to turn into a precedent-setting case that creates new ground rules for electronic privacy, especially since Homeland Security claims the right to seize laptops at the border for an indefinite period. Budreau was out of the office on Thursday and could not immediately be reached for comment.

The Fifth Amendment says nobody can be "compelled in any criminal case to be a witness against himself," which Magistrate Judge Jerome Niedermeier ruled in November 2007 prevented Boucher from being forced to divulge his passphrase to prosecutors.

Originally, the U.S. Department of Justice asked the magistrate judge to enforce a subpoena requiring Boucher to turn over "passwords used or associated with" the computer. In their appeal to Sessions, prosecutors narrowed their request and said they only want Boucher to decrypt the contents of his hard drive before the grand jury, apparently by typing in his passphrase in front of them.

At issue in this case is whether forcing Boucher to type in that PGP passphrase--which would be shielded from and remain unknown to the government--is "testimonial," meaning that it triggers Fifth Amendment protections. The counterargument is that since defendants can be compelled to turn over a key to a safe filled with incriminating documents, or provide fingerprints, blood samples, or voice recordings, unlocking a partially-encrypted hard drive is no different.

Barry Steinhardt, director of the ACLU's technology and liberty program, said on Thursday that the opinion reached the wrong conclusion and that Boucher "should have been able to assert his Fifth Amendment rights. It's not the same thing as asking him to turn over the Xeroxed copy of a document."

"There is no distinction" between requiring a defendant to turn over the passphrase or type it in himself in front of a grand jury, Steinhardt said. "Either of those things results in an encrypted set of files being brought into plain view."

Judge Sessions reached his conclusion by citing a Second Circuit case, U.S. v. Fox, that said the act of producing documents in response to a subpoena may communicate incriminating facts in two ways: first, if the government doesn't know where the incriminating files are, or second, if turning them over would "implicitly authenticate" them.

Because the Justice Department believes it can link Boucher with the files through another method, it's agreed not to formally use the fact of his typing in the passphrase against him. (The other method appears to be having the ICE agent testify that certain images were on the laptop when viewed at the border.)

Sessions wrote: "Boucher's act of producing an unencrypted version of the Z drive likewise is not necessary to authenticate it. He has already admitted to possession of the computer, and provided the government with access to the Z drive. The government has submitted that it can link Boucher with the files on his computer without making use of his production of an unencrypted version of the Z drive, and that it will not use his act of production as evidence of authentication."

The defendant is a Canadian citizen who is a lawful permanent resident in the United States and lived with his father in Derry, N.H.

Boucher was initially arrested when customs agents stopped him and searched his laptop when he and his father crossed the border from Canada on December 17, 2006. An officer opened the laptop, accessed the files without a password or passphrase, and allegedly discovered "thousands of images of adult pornography and animation depicting adult and child pornography." Boucher was read his Miranda rights, waived them, and allegedly told the customs agents that he may have downloaded child pornography. But then--and this is key--the laptop was shut down after Boucher was arrested.

It wasn't until December 26 that a Vermont Department of Corrections officer tried to access the laptop--prosecutors obtained a subpoena on December 19--and found that the Z: drive was encrypted with PGP, or Pretty Good Privacy. (PGP sells software, including whole disk encryption and drive-specific encryption, which can be configured to forget the passphrase after a certain time. That would effectively re-encrypt the Z: drive.)

It's not the U.S. but I was in Singapore, and at the airport they asked me if I had any porn on my computer and if so I had to erase it, of course I said no, but they made me open my computer up and had a guy search my files, and he deleted my porn and some girlfriend pictures. I decided to get the fuk out of Singapore went straight to Swiss Air and got a ticket for Bangkok lol! Some people don't realize the right's we Americans have!

**gst528i** · 02-26-2009, 11:49 PM

So porn is illegal??

**illwillogical** · 02-26-2009, 11:51 PM

It is in Singapore! LOL

**T_Own** · 02-26-2009, 11:51 PM

interesting

**amcon** · 02-26-2009, 11:53 PM

good post ... what ever he has i dont believe he should be forced to be used as evidence against him self... that would be like a judge saying admit that you use aas or i am going to hold you in contempt of court.

sad thing is he may have kiddy porn on their and they just need to get at it a dif way... if he is guilty i hope he pays the price - but he must not be forced to incriminate him self

good post

**T_Own** · 02-27-2009, 12:03 AM

they're saying that by typing in his password he isn't self incriminating basically just because he didn't say it. thats why they referenced the key to the safe.

**gst528i** · 02-27-2009, 12:04 AM

yea doesn;t matter if he has picture of him molesting a child for that matter. Giving evidence against your self is worse. That brings about a whole bunch of issues.

**gst528i** · 02-27-2009, 12:04 AM

Originally Posted by T_Own

they're saying that by typing in his password he isn't self incriminating basically just because he didn't say it. thats why they referenced the key to the safe.

Yea but it;s algo like telling them where to find the murder weapon

**amcon** · 02-27-2009, 12:11 AM

Originally Posted by gst528i

yea doesn;t matter if he has picture of him molesting a child for that matter. Giving evidence against your self is worse. That brings about a whole bunch of issues.

look they prob just threw the kiddy porn in their to incite every one to want him prosicuted... he just might have gay porn on there or things he doenst want ohters to see but ... and that is a big but ... it has to be unconstitional under several things... testifing against your self - that is being forced too, and other things i am too tired to type now

but if he is guilty they just need to find a dif way to get in there

**T_Own** · 02-27-2009, 12:48 AM

Originally Posted by amcon

look they prob just threw the kiddy porn in their to incite every one to want him prosicuted... he just might have gay porn on there or things he doenst want ohters to see but ... and that is a big but ... it has to be unconstitional under several things... testifing against your self - that is being forced too, and other things i am too tired to type now

but if he is guilty they just need to find a dif way to get in there

they wouldn't care if he had gay porn. the only reason they care is because the ICE guy said he had kid porn at the time they checked his laptop at the border. which is illegal

**DSM4Life** · 02-27-2009, 06:12 AM

Originally Posted by illwillogical

It is in Singapore! LOL

I wonder what they would have done if they found my porn

***RAGE*** · 02-27-2009, 11:40 AM

good post bro......makes you think since we use our computer for so much now......i have to leave now....lol

**firmechicano831** · 02-27-2009, 01:00 PM

hes fuc.ked.

**The Deuce** · 02-27-2009, 02:24 PM

Yah well if I was him while decrypting it I would set a bug inside it that would erase all the information ... it's possible... very very very possible to do if he is giving the keyboard... few strokes and the data is erased forever !!!

**BARLOW** · 02-27-2009, 02:32 PM

id just run it like a football and throw it in traffic. GET THA **** OUTTA MAH WAY ... KIDDY PORN COMIN THROUGH!

**T_Own** · 02-27-2009, 03:23 PM

Originally Posted by The Deuce

Yah well if I was him while decrypting it I would set a bug inside it that would erase all the information ... it's possible... very very very possible to do if he is giving the keyboard... few strokes and the data is erased forever !!!

you can delete it, but there are still traces on the hard drive, and you would have to be a beast to set a worm or something off in that short of a time. since all they need from him is a password, they probably won't let him type away for a minute or so