Orin Kerr , December 14, 2007 at 6:59pm] Trackbacks Magistrate Judge Finds Fifth Amendment Right Not to Enter Encryption Passphrase:



First, the facts. Boucher was crossing the border from Canada to Vermont when border agents began to suspect he had child pornography in the car. They saw a laptop in the back of the car and opened it up. It was not password-protected, an an agent began to look through it. (By way of background, the Fourth Amendment has an exception at the border that makes this search legal.) 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.



Now here's where it gets interesting. Two weeks later a government forensic analyst started to analyze the machine. He created a "mirror" copy of the hard drive and then looked at the mirror to see what it contained. But it turned out that the part of the hard drive that was designated "drive Z" was encrypted with the popular software program



Judge Niedermeier ruled that Boucher did have such a privilege and quashed the subpoena. According to Judge Niedermeier, entering in the password would be testimonial.

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Here's the key passage: Entering a password into the computer implicitly communicates facts. By entering the password Boucher would be disclosing the fact that he knows the password and has control over the files on drive Z. The procedure is equivalent to asking Boucher, "Do you know the password to the laptop?" If Boucher does know the password, he would be faced with the forbidden trilemma; incriminate himself, lie under oath, or find himself in contempt of court. Id . at 212.

The Supreme Court has held some acts of production are unprivileged such as providing fingerprints, blood samples, or voice recordings. Id. at 210. Production of such evidence gives no indication of a person's thoughts or knowledge because it is undeniable that a person possesses his own fingerprints, blood, and voice. Id. at 210-11. Unlike the unprivileged production of such samples, it is not without question that Boucher possesses the password or has access to the files.

In distinguishing testimonial from non-testimonial acts, the Supreme Court has compared revealing the combination to a wall safe to surrendering the key to a strongbox. See id. at 210, n. 9; see also United States v. Hubbell, 530 U.S. 27, 43 (2000). The combination conveys the contents of one's mind; the key does not and is therefore not testimonial. Doe II, 487 U.S. at 210, n. 9. A password, like a combination, is in the suspect's mind, and is therefore testimonial and beyond the reach of the grand jury subpoena.

The government has offered to restrict the entering of the password so that no one views or records the password. While this would prevent the government from knowing what the password is, it would not change the testimonial significance of the act of entering the password. Boucher would still be implicitly indicating that he knows the password and that he has access to the files. The contents of Boucher's mind would still be displayed, and therefore the testimonial nature does not change merely because no one else will discover the password. Judge Niedermeier also rejected the argument that the Fifth Amendment didn't apply because the testimonial fact was a "foregone conclusion" and thus not protected: While the government has seen some of the files on drive Z, it has not viewed all or even most of them. While the government may know of the existence and location of the files it has previously viewed, it does not know of the existence of other files on drive Z that may contain incriminating material. By compelling entry of the password the government would be compelling production of all the files on drive Z, both known and unknown. . . . [T]he files the government has not seen could add much to the sum total of the government's information. Therefore, the foregone conclusion doctrine does not apply and the act of production privilege remains.

Since the government is trying to compel the production of the password itself, the foregone conclusion doctrine cannot apply. The password is not a physical thing. If Boucher knows the password, it only exists in his mind. This information is unlike a document, to which the foregone conclusion doctrine usually applies, and unlike any physical evidence the government could already know of. It is pure testimonial production rather than physical evidence having testimonial aspects. Compelling Boucher to produce the password compels him to display the contents of his mind to incriminate himself. Doe III did not deal with production of a suspect's thoughts and memories but only previously created documents. The foregone conclusion doctrine does not apply to the production of non-physical evidence, existing only in a suspect's mind where the act of production can be used against him. I don't play in the sandbox of the Fifth Amendment as much as I do the Fourth, but my sense is that Judge Niedermeier is wrong. True, being forced to enter in the password has a communicative aspect to it. It says, "I know the password to drive Z on my laptop." But based on the specific facts of the case, don't we already know that? Isn't it a "foregone conclusion" under the Fisher case? Boucher admitted that it was his laptop, and he described how he used it. When he agreed to show the officers the files inside, he had no problem powering it up and bringing them to the contents of drive Z. The subpoena is simply trying to get Boucher to take the officers back to where he had already taken them before: through the passphrase so they can access the files.



Judge Niedermier's response is that this is true for the child pornography the agents saw but that there may be other files on the computer that are also incriminating. Entering in the key will be akin to producing any other files that might exist, effectively saying, "these are files on my laptop." But I think that's wrong. As I see it, entering the passphrase doesn't have any testimonial content as to Boucher's knowledge or beliefs as to any other files in "drive Z" that may or may not exist. Maybe there are other incriminating files in drive Z. On the other hand, maybe there aren't. But the answer to that is completely independent of what Boucher is being asked to do.



It may be that entering in the passphrase will help the police find more child pornography, but that is not the result of the communicative aspect of responding to the subpoena. Boucher's entering in the password won't amount to Boucher's testimony about anything they don't already know in the context of this case. Its role is merely that it will let the police access whatever is on the hard drive, which may or may not relate to criminal activity and may or may not implicate Boucher. Boucher won't be "bringing" the files to the police in response to an order to incriminating files; he will merely be opening the door to the safe that we all know is his and that we seem to know he knows how to open.



Given that this post might be of interest to a non-lawyer crowd, I should add an important point that will be obvious to the lawyers but not obvious to the computer crowd: This opinion does not really settle the legal issue. It's only an opinion by one judge, and that judge isn't even a "real" federal District Court judge. The opinion is only the decision of one Magistrate Judge, who is sort of an assistant judge in the federal system. If you want to make an analogy to science, this is like one professor's hypothesis rather than an experimental or theoretical proof. So while it's the first case on the issue, it may be wrong (as I tend to think it is) and probably won't be the final word either way.



Anyway, this is an interesting and difficult issue, and that's my tentative take on it. I'd be particularly interested in hearing from techies who have a sense of what probably happened on the tech side. Finally, thanks to Robert W. Clark for bringing the case to my attention. Here's the key passage:Judge Niedermeier also rejected the argument that the Fifth Amendment didn't apply because the testimonial fact was a "foregone conclusion" and thus not protected:I don't play in the sandbox of the Fifth Amendment as much as I do the Fourth, but my sense is that Judge Niedermeier is wrong. True, being forced to enter in the password has a communicative aspect to it. It says, "I know the password to drive Z on my laptop." But based on the specific facts of the case, don't we already know that? Isn't it a "foregone conclusion" under thecase? Boucher admitted that it was his laptop, and he described how he used it. When he agreed to show the officers the files inside, he had no problem powering it up and bringing them to the contents of drive Z. The subpoena is simply trying to get Boucher to take the officers back to where he had already taken them before: through the passphrase so they can access the files.Judge Niedermier's response is that this is true for the child pornography the agents saw but that there may be other files on the computer that are also incriminating. Entering in the key will be akin to producing any other files that might exist, effectively saying, "these are files on my laptop." But I think that's wrong. As I see it, entering the passphrase doesn't have any testimonial content as to Boucher's knowledge or beliefs as to any other files in "drive Z" that may or may not exist. Maybe there are other incriminating files in drive Z. On the other hand, maybe there aren't. But the answer to that is completely independent of what Boucher is being asked to do.It may be that entering in the passphrase will help the police find more child pornography, but that is not the result of the communicative aspect of responding to the subpoena. Boucher's entering in the password won't amount to Boucher's testimony about anything they don't already know in the context of this case. Its role is merely that it will let the police access whatever is on the hard drive, which may or may not relate to criminal activity and may or may not implicate Boucher. Boucher won't be "bringing" the files to the police in response to an order to incriminating files; he will merely be opening the door to the safe that we all know is his and that we seem to know he knows how to open.Given that this post might be of interest to a non-lawyer crowd, I should add an important point that will be obvious to the lawyers but not obvious to the computer crowd: This opinion does not really settle the legal issue. It's only an opinion by one judge, and that judge isn't even a "real" federal District Court judge. The opinion is only the decision of one Magistrate Judge, who is sort of an assistant judge in the federal system. If you want to make an analogy to science, this is like one professor's hypothesis rather than an experimental or theoretical proof. So while it's the first case on the issue, it may be wrong (as I tend to think it is) and probably won't be the final word either way.Anyway, this is an interesting and difficult issue, and that's my tentative take on it. I'd be particularly interested in hearing from techies who have a sense of what probably happened on the tech side. Finally, thanks to Robert W. Clark for bringing the case to my attention. Related Posts (on one page): More on Encryption, the Fifth Amendment, and the "Foregone Conclusion" Exception: Magistrate Judge Finds Fifth Amendment Right Not to Enter Encryption Passphrase: Imagine the government seizes a suspect's hard drive and finds encrypted files inside. Can the government force the suspect to enter in his encryption passphrase so the government can view the decrypted files? Or does the Fifth Amendment privilege give the suspect a legal right not to enter in the passphrase? On November 29, Magistrate Judge Jerome Niedermeier in Vermont handed down the first opinion to squarely address the issue: In re Boucher . Judge Niedermeier ruled that the defendant did have a Fifth Amendment privilege in such circumstances. This is a hard issue, but I tend to think Judge Niedermeier was wrong given the specific facts of this case.First, the facts. Boucher was crossing the border from Canada to Vermont when border agents began to suspect he had child pornography in the car. They saw a laptop in the back of the car and opened it up. It was not password-protected, an an agent began to look through it. (By way of background, the Fourth Amendment has an exception at the border that makes this search legal.) 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 hisrights 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.Now here's where it gets interesting. Two weeks later a government forensic analyst started to analyze the machine. He created a "mirror" copy of the hard drive and then looked at the mirror to see what it contained. But it turned out that the part of the hard drive that was designated "drive Z" was encrypted with the popular software program PGP , and no one — no one, presumably, except for Boucher — knew the password. The government tried to guess the password and failed, so the grand jury issued a subpoena to Boucher ordering him to disclose the password to drive Z. Boucher's counsel them moved to block the subpoena, arguing that he had a Fifth Amendment privilege not to comply. The government responded that it would be happy to just have Boucher enter in the password without the government ever seeing it. The Court thus addressed only whether Boucher had a Fifth Amendment privilege not to enter in the password.Judge Niedermeier ruled that Boucher did have such a privilege and quashed the subpoena. According to Judge Niedermeier, entering in the password would be testimonial.