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March 2, 2009

Boucher Case Tests Limits of Fifth Amendment Protections

The Boucher case has bubbled back up recently.  Boucher had been stopped at the Canadian border while crossing into Vermont.  His running laptop was examined by an ICE agent who determined that it contained child pornography.  Boucher was arrested and the laptop seized.  The government used forensic experts to examine the machine and they discovered that they could not find the Z drive or access any of the contents because it was protected by Pretty Good Privacy encryption.  This case will be a commercial for PGP no matter how it turns out.  Banner ads will trumpet "Even the government can't break us."  Well, maybe not.  Still, the product lives up to its name.

The government issued a subpoena to compel Boucher to turn over the password to the encrypted drive.  Boucher declined, citing his Fifth Amendment rights.  A Magistrate Judge in late 2007 agreed and quashed the subpoena.  The government appealed that decision to the District Judge assigned to the case.  He reviewed the government's later, narrowed subpoena, which does not require Boucher to turn over the password, but to start his laptop in an unencrypted form before the grand jury.  The government's reasoning is that it is already aware of the nature of the contents based on the initial view by the ICE agent. 

The Judge agreed, noting that incrimination occurs in two situations, "(1) ‘if the existence and location of the subpoenaed papers are unknown to the government’; or (2) where production would ‘implicitly authenticate’ the documents.” Id. (quoting United States v. Fox, 721 F.2d 32, 36 (2d Cir.1983))."  The Court reasoned that the government is already aware of the contents, and they need not be authenticated as Boucher has already admitted that the laptop is his. 

The case is In re Boucher, 2009 WL 424718, D.Vt., February 19, 2009.  On to the Circuit Court of Appeals.

March 2, 2009 | Permalink

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