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In court: Can you keep your password private to protect against self-incrimination?

A laptop owner's Fifth Amendment rights are at stake in a complicated legal case

January 17, 2008 12:00 PM ET

Computerworld - Can the government force you to reveal a password to unlock encrypted files on your computer that are known to contain child pornography? Or would doing so constitute a violate your Fifth Amendment right against self incrimination?

That's the issue in front of a federal district court in Vermont in what is believed to be the first case to test the issue in the U.S.

The case involves a Canadian citizen, Sebastien Boucher, who is now a legal permanent resident living in Derry, N.H. Boucher was arrested in December 2006 at the Canadian border in Derby Line, Vt. on charges of transporting child pornography on his computer.

According to a description of the arrest in court documents, Boucher was pulled over for a secondary inspection by a Custom and Border Protection officer while attempting to cross into the U.S from Canada. During the secondary inspection, the officer noticed a laptop computer in Boucher's car and proceeded to inspect it for child pornography images.

Of the 34,000 or so image files on Boucher's computer, several appeared to have names suggesting explicit child pornography, including one titled, "Two-year old being raped during diaper change." On being asked by the officer whether the computer contained child pornography images Boucher claimed that he did not know for sure because he had not checked the temporary Internet files folder on his computer.

A special agent who had experience and training in identifying child pornography was then called in to inspect Boucher's computer. That inspection revealed several images of adult and animated child pornography. But when the special agent tried to click on the file with the name suggesting child pornography, he found he was unable to open it. When asked about the file, Boucher stated that he visited various newsgroups from which he downloaded pornographic images. He conceded that some of the files might unknowingly be child porn but added that he deleted those files when he saw them.

Boucher was then asked to show the agent the files that he downloaded from such news groups. Boucher was allowed access to the laptop and he navigated to a section of it called drive Z. An inspection of the files in drive Z revealed several containing graphic child pornography including many involving preteens. The computer was then seized and Boucher himself was arrested.

About two weeks after the arrest, an officer at the Vermont Department of Corrections took custody of Boucher's laptop and created a mirror image of its contents. However when he attempted to access the contents in drive Z, he found that he was unable to do so because it had been encrypted using software from Pretty Good Privacy (PGP).



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