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 --------------------------------------------------------------------- The Cryptography Mailing List Unsubscribe by sending "unsubscribe cryptography" to majord...@metzdowd.com