''In re Boucher'' (

case citation Case citation is a system used by legal professionals to identify past court case decisions, either in series of books called reporters or law reports, or in a neutral style that identifies a decision regardless of where it is reported. Case c ...

: No. 2:06-mJ-91, 2009 WL 424718), is a

federal Federal or foederal (archaic) may refer to: Politics General *Federal monarchy, a federation of monarchies *Federation, or ''Federal state'' (federal system), a type of government characterized by both a central (federal) government and states or ...

criminal case in

Vermont Vermont () is a state in the northeast New England region of the United States. Vermont is bordered by the states of Massachusetts to the south, New Hampshire to the east, and New York to the west, and the Canadian province of Quebec to ...

, which was the first to directly address the question of whether investigators can compel a suspect to reveal their

encryption In cryptography, encryption is the process of encoding information. This process converts the original representation of the information, known as plaintext, into an alternative form known as ciphertext. Ideally, only authorized parties can de ...

passphrase A passphrase is a sequence of words or other text used to control access to a computer system, program or data. It is similar to a password in usage, but a passphrase is generally longer for added security. Passphrases are often used to control ...

password A password, sometimes called a passcode (for example in Apple devices), is secret data, typically a string of characters, usually used to confirm a user's identity. Traditionally, passwords were expected to be memorized, but the large number of ...

, despite the

U.S. Constitution The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nation ...

's Fifth Amendment protection against

self-incrimination In criminal law, self-incrimination is the act of exposing oneself generally, by making a statement, "to an accusation or charge of crime; to involve oneself or another ersonin a criminal prosecution or the danger thereof". (Self-incrimination ...

. A

magistrate judge The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a '' magistratus'' was one of the highest ranking government officers, and possessed both judici ...

held that producing the passphrase would constitute self-incrimination. In its submission on appeal to the District Court, the Government stated that it does not seek the password for the encrypted hard drive, but only sought to force Boucher to produce the contents of his encrypted hard drive in an unencrypted format by opening the drive before the grand jury. A District Court judge agreed with the government, holding that, given Boucher's initial cooperation in showing some of the content of his computer to border agents, producing the complete contents would not constitute self-incrimination. In late 2009, Boucher finally gave up his password and investigators found numerous images and videos depicting sexual abuse of children. In January 2010, Boucher was sentenced to 3 years in prison and deported.

Facts

On 17 December 2006, the

laptop computer A laptop, laptop computer, or notebook computer is a small, portable personal computer (PC) with a screen and alphanumeric keyboard. Laptops typically have a clam shell form factor with the screen mounted on the inside of the upper li ...

of defendant Sebastien D. Boucher (born in 1977) was inspected when he crossed the border from Canada into the United States at Derby Line, Vermont. The laptop was powered-up when the border was crossed, which allowed its contents to be browsed. Images containing

child pornography Child pornography (also called CP, child sexual abuse material, CSAM, child porn, or kiddie porn) is pornography that unlawfully exploits children for sexual stimulation. It may be produced with the direct involvement or sexual assault of a ...

were allegedly seen by Immigration and Customs Enforcement (ICE) border agents who seized the laptop, questioned Boucher and then arrested him on a complaint charging him with transportation of child pornography in violation of 18 U.S.C. 2252A(a)(1). The laptop was subsequently powered-down. When the laptop was switched on and booted on 29 December 2006, it was not possible to access its entire storage capability. This was because the laptop had been protected by

PGP Disk PGP Virtual Disk is a disk encryption system that allows one to create a virtual encrypted disk within a file. Older versions for Windows NT were freeware (for example, bundled with PGP v6.0.2i; and with some of the CKT builds of PGP). These are st ...

encryption. As a result, investigators working for the US government were unable to view the contents of drive "Z:", which allegedly contained the illegal content. A grand jury then

subpoena A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...

ed the defendant to provide the password to the

encryption key A key in cryptography is a piece of information, usually a string of numbers or letters that are stored in a file, which, when processed through a cryptographic algorithm, can encode or decode cryptographic data. Based on the used method, the key ...

protecting the data.

Decision of the United States District Court

On November 29, 2007, U.S. Magistrate Judge Jerome Niedermeier of the

United States District Court for the District of Vermont The United States District Court for the District of Vermont (in case citations, D. Vt.) is the United States district court, federal district court whose jurisdiction is the federal district of Vermont. The court has locations in Brattleboro, ...

stated "Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him." Accordingly, Niedermeier quashed the subpoena. On January 2, 2008, the United States appealed the magistrate's opinion to the District Court in a sealed motion (court docket, case #: 2:06-mJ-00091-wks-jjn-1). The appeal was heard by U.S. District Judge William K. Sessions. Oral arguments were scheduled for April 30, 2008. On February 19, 2009, Judge Sessions reversed the magistrate's ruling and directed Boucher "to provide an unencrypted version of the Z drive viewed by the ICE agent."

References

External links

Compelling Access To An Encrypted Laptop (Part I)
by Federal Evidence Blog
Compelling Access To An Encrypted Laptop (Part II)
by Federal Evidence Blog

by Declan McCullagh, CNet News

{{Webarchive, url=https://web.archive.org/web/20120106000337/http://news.cnet.com/8301-13578_3-9854034-38.html , date=2012-01-06 , by Declan McCullagh, CNet News
Opinion and Order In re: Grand Jury Subpoena
Nov. 29, 2007, Case No. 2:06-mJ-91, document 35. PACER account registration required, but there is no charge for viewing this document.
UK Court Parts with US Court Regarding Compelled Disclosure of Encryption Keys
Cryptography law Disk encryption United States Fifth Amendment self-incrimination case law Digital forensics

Facts

Decision of the United States District Court

See also

References

Further reading

External links