On Tue, 03 Mar 2009 17:05:32 -0800
John Gilmore <g...@toad.com> wrote:

> > I would not read too much into this ruling -- I think that this is a
> > special situation, and does not address the more important general
> > issue.  
> > In other cases, where alternative evidence is not available to the
> > government, and where government agents have not already had a look
> > at the contents, the facts (and hence perhaps the ruling) would be
> > different.
> Balls.  This is a straight end-run attempt around the Fifth Amendment.
> The cops initially demanded a court order making him reveal his
> password -- then modified their stance on appeal after they lost.  So
> he can't be forced to reveal it, but "on a technicality" he can be
> forced to produce the same effect as revealing it?  Just how broad is
> this technicality, and how does it get to override a personal
> constitutional right?

Courts very rarely issue broader rulings than they absolutely have to.
*Given the facts of this particular case* -- where Federal agents have
already seen the putatively-illegal images -- it strikes me as unlikely
there will be definitive ruling in either direction.  

Let me refer folks to Orin Kerr's blog on the original ruling:
http://volokh.com/posts/chain_1197670606.shtml .  I rarely agree with
Kerr; this time, after thinking about it a *lot*, I concluded he was
likely correct.  I suggest that people read his post (including all the
'click here to see more' links, which seem to require (alas)
Javascript) and the precedents cited.  It doesn't mean I agree with all
of those rulings (I don't), or that I think the courts should rule
against Boucher.  What I'm saying is that based on precedent and the
facts of this case, I think they will.

Here's a crucial factual excerpt from Kerr's blog:

        The agent came across several files with truly revolting titles
        that strongly suggested the files themselves were child
        pornography. The files had been opened a few days earlier, but
        the agent found that he could not open the file when he tried
        to do so. Agents asked Boucher if there was child pornography
        in the computer, and Boucher said he wasn't sure; he downloaded
        a lot of pornography on to his computer, he said, but he
        deleted child pornography when he came across it.

        In response to the agents' request, Boucher waived his Miranda
        rights and agreed to show the agents where the pornography on
        the computer was stored. The agents gave the computer to
        Boucher, who navigated through the machine to a part of the
        hard drive named "drive Z." The agents then asked Boucher to
        step aside and started to look through the computer themselves.
        They came across several videos and pictures of child
        pornography. Boucher was then arrested, and the agents powered
        down the laptop.

Also note this text from the original ruling (at
http://www.volokh.com/files/Boucher.pdf) supporting Boucher:

        Both parties agree that the contents of the laptop do
        not enjoy Fifth Amendment protection as the contents
        were voluntarily prepared and are not testimonial. See
        id. at 409-10 (holding previously created work
        documents not privileged under the Fifth Amendment).
        Also, the government concedes that it cannot compel
        Boucher to disclose the password to the grand jury
        because the disclosure would be testimonial. The
        question remains whether entry of the password, giving
        the government access to drive Z, would be testimonial
        and therefore privileged.

The legal issue is very narrow: is entering the password "testimonial",
and thus protected?  Again: "both parties agree that the contents of the
laptop do not enjoy Fifth Amendment protection as the contents were
voluntarily prepared and are not testimonial."

Beyond that, Boucher waived his Miranda rights in writing and showed the
agent the (I assume) relevant folders.  That, coupled with the
precedents from Fisher, Hubbell, etc., make it likely, in my
non-lawyerly opinion, that the government will prevail. *But* -- I
predict that the ruling will be narrow.  It will not (I suspect and
hope) result in a ruling that the government can always compel the
production of keys.

(Philosophical aside: I've never been happy with the way the Fifth
Amendment has been interpreted.  To me, it's about freedom of
conscience, rather than freedom from bringing punishment upon oneself.
The law supports that in other situations -- the spousal exemption, the
priest-penitent privilege, etc.  This is why grants of immunity and
especially use immunity have always troubled me.  I recognize, though,
that this is not the way the law works.)

So -- I suspect that Boucher is going to lose.  The real question is
whether the ruling will be narrow, based on these facts, or whether
some judge will issue a broad ruling on witholding keys.

                --Steve Bellovin, http://www.cs.columbia.edu/~smb

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