Judge Rules Man Cannot Be Forced To Decrypt HD

I Don't Believe in Imaginary Property writes "In Vermont, US Magistrate Judge Jerome Niedermeier has ruled that forcing someone to divulge the password to decrypt their hard drive violates the 5th Amendment. Border guards testify that they saw child pornography on the defendant's laptop when the PC was on, but they made the mistake of turning it off and were unable to access it again because the drive was protected by PGP. Although prosecutors offered many ways to get around the 5th Amendment protections, the Judge would have none of that and quashed the grand jury subpoena requesting the defendant's PGP passphrase. A conviction is still likely because prosecutors have the testimony of the two border guards who saw the drive while it was open." The article stresses the potential importance of this ruling (which was issued last November but went unnoticed until now): "Especially if this ruling is appealed, US v. Boucher could become a landmark case. The question of whether a criminal defendant can be legally compelled to cough up his encryption passphrase remains an unsettled one, with law review articles for the last decade arguing the merits of either approach."

Update: 08/19 23:49 GMT by KD : Several readers have pointed out that this story in fact did not go unnoticed.

The devil is in the details

[Ethanol-fueled (1125189)]

From TFA:

"thousands of images of adult pornography and animation depicting adult and child pornography."

I know that TFA is about encryption and the rights to passwords but I think the phrase above is far more interesting. That quote could be misleading, but what if the Border Enforcers didn't find any photographs or videos(hell, any evidence at all)of real human child exploitation?

If they are able to legally get the key and crack the drive, and all they found was animation, then maybe they should just give him a warning and and call him a "perv"...especially if he has "thousands" of files and not a single one is "real".

By the way, those of you who fantasize about your wife or girlfriend in a schoolgirl outfit are also pervs :)

Re:The devil is in the details

[hkgroove (791170)]

What does that make us who may have a girlfriend who dress in school girl outfits for us?

Re:The devil is in the details

[Gloy (1151691)]

Liars.

Re:The devil is in the details

[QuantumG (50515)]

What does that make us who may have a girlfriend who dress in school girl outfits for us?

lucky bastards?

Re:The devil is in the details

[_merlin (160982)]

Total nerds? Freaks? Transvestites? Gender benders? Have to say it's fun, though.

Maybe you should look at the Protect Act?

[by Anonymous Coward]

http://en.wikipedia.org/wiki/PROTECT_Act_of_2003 [wikipedia.org]

I knew that I read this somewhere... Prohibits computer-generated child pornography when "(B) such visual depiction is a computer image or computer-generated image that is, or appears virtually indistinguishable from that of a minor engaging in sexually explicit conduct; (as amended by 1466A for Section 2256(8)(B) of title 18, United States Code).

Re:The devil is in the details

[Aaron England (681534)]

The prohibition of virtual child pornography was overturned in the United States with Ashcroft v. Free Speech Coalition (2002). It is still illegal in the European Union however.

Re:The devil is in the details

[by Anonymous Coward]

By the way, those of you who fantasize about your wife or girlfriend in a schoolgirl outfit are also pervs

What I wear while fantasizing about my wife is none of your concern.

Re:The devil is in the details

[vonmeth (656965)]

This is incorrect if you are speaking of the United States.
http://en.wikipedia.org/wiki/Ashcroft_v._Free_Speech_Coalition [wikipedia.org]

Re:The devil is in the details

[by Anonymous Coward]

Naah. Society has lost it's mind when it comes to children, period. There's some sort of popular myth that started with the Baby Boomer generation that children need to be protected from everything. I'm not saying that sexual abuse of a child is ever right, but I'm saying that we have come to hold this purported "innocence" as sacrosanct, much to the detriment of society in general, as we have raised a generation of kids unable to deal with even getting a job on their own [msn.com]. The sooner we realize that kids don't need coddled, and need to be educated, this shit will go away by itself for a large part.

I'd love to post this signed in, but I'm afraid that in the current climate, people will start hunting me down as some kind of pedophile (which is the new version of the word "witch", "commie", or "fag", depending on what era you're from). An unassailable accusation that you have no hope in hell of defending yourself against, even if there is no truth to it.

Re:The devil is in the details

[Gregg M (2076)]

Actually, child pornography is such a witchhunt that even animated child pornography is illegal.

Actually, It's not. Here's a quote from Wikipedia's listing under Child pornography [wikipedia.org].

Child pornography may be simulated by the use of computers[13] or adults made to look like children.[14] For simulated child pornography that is produced without the involvement of children, there is some controversy regarding whether or not such simulated child pornography is abusive to children. The legal status of simulated or "virtual" child pornography varies around the world; for example, it is legal in the United States, it is illegal in the European Union, and in Australia its legal status is unclear and so far untested in the courts.

of course

[hamburger lady (218108)]

Border guards testify that they saw child pornography on the defendant's laptop when the PC was on

wow, so cops testify that it's true? that's good enough for me!

Re:of course

[Gen-GNU (36980)]

I also doubt that a "conviction is still likely", unless they have some other material to show. Convictions in these cases are almost always due to the shock value created by showing the dirty films and pictures to the jury. If they cannot recover the images and movies, they will actually have to cover their burden of proof a lot more than prosecutors are used to in this case, and the defense might actually have a shot.

If the jury actually thinks about the fact that the only evidence is what some cops say they saw, but can't prove. If the prosecution somehow gets to show "similar images" or some such nonsense, the defense is hosed.

Re:of course

[moderatorrater (1095745)]

If it's not true, then the defendant can just turn around and offer the keys to the volume and get the cops in trouble for perjury. I doubt he's innocent, but if he is this could be one of the most satisfying court cases in the history of geekdom. Defending your right to encryption and then catching two police in a blatant lie? Priceless!

People really are stupid

[QuantumG (50515)]

Turn *off* your laptop before going through customs.
Turn off the GRUB menu and change the default key combination to have it come up.
Have a WinXP install to boot up into and set it as the default boot option.

Strong cryptography is lovely but it is not for idiots.

think about the children!

[BlackCreek (1004083)]

The problem with this case is that it is the textbook example of the think about the children argument to bypass regular civil rights. As such it could just as well end up being used to throw (more) smoke at the public understanding of the merits of being entitled to privacy.

In any case, it is good to see judges in the US (or anywhere else) making into the news for taking the right stand regarding governmental search limits.

Wow...anyone know what happened to him?

[clonehappy (655530)]

Here, we have a story which is not only over 8 months old, but is also a dupe [slashdot.org]. That has to be some kind of a record.

Uh-Oh

[fuzzyfuzzyfungus (1223518)]

From TFA :"Orin Kerr, a former Justice Department prosecutor who's now a law professor at George Washington University, shares this view. Kerr acknowledges that it's a tough call, but says, "I tend to think Judge Niedermeier was wrong given the specific facts of this case." "

The phrase "given the specific facts of this case" gives me chills in this context. As we all know, kiddie porn is, along with terrorism and drugs, one of the three Prime Evils of American jurisprudence and public opinion, the unholy trinity that justify any and all measures in their eradication.

In short: Why, why does our potential landmark 5th amendment case have to be a kiddie porn case? I'm no fan of child pornography; but it would be an absolute disaster if, thanks to the vociferous moral condemnation that such a case always involved, we end up setting a dangerous precedent concerning the 5th amendment and crypto keys/passwords.

I think it involves no hyperbole to say that the crypto key issue is probably the most important 5th amendment related question that technology has yet raised(mindreading tech will probably top it, when it becomes available). I'd hate to see this be yet another decision chiseling away at our constitution, just because some punk likes kiddie porn.

Re:Uh-Oh

[QuantumG (50515)]

Because if your rights and freedoms do not stand up when applied to the worst of the worst then they most likely won't stand up when applied to you.

Strange

[PPH (736903)]

IANAL, but if my memory serves me correctly, Customs and "border guards"aren't constrained by the same laws that other law enforcement is. That's why they can search your vehicle, personal effects, body cavities, etc. when you enter the country without a warrant.

I have a constitutional protection against unreasonable searches and seizures once inside the United States, but not while entering it. The judges decision sounds nice, but I don't think it will stand.

Re:Strange

[Free the Cowards (1280296)]

That's why they could look at it in the first place.

But they failed to gather evidence when they had the chance. And now he's back in the country, subject to all the regular protections. If they had copied the unencrypted contents of his hard drive previously they would be able to use that evidence in court, but they can't force him to decrypt its contents now just because they happened to have access to it when he crossed.

Dupe, noted in firehose, with link

[Timothy Brownawell (627747)]

Seriously, are the editors asleep?

This story [slashdot.org] from last December had the exact same article. This was noted in the firehose entry [slashdot.org], and somehow this still got posted. I thought that kind of thing was a major purpose of the firehose?

WTF

You have the right to remain silent.

[by Anonymous Coward]

Period. End of discussion. They cannot compel your testimony. Not one word can they force you to utter. It is your choice to stand mute and that cannot be used against you.

Anything more than this, compelling you to utter even a single syllable in order to prove your own innocence or guilt, and we don't live in the land of the free anymore.

Re:Sweet!

[pcolaman (1208838)]

Considering that the constitution provides that he shouldn't be forced to incriminate himself, it is definitely good news that the Judge didn't try to rewrite the constitution. It's high time that we start holding the judges who disagree with this concept accountable.

Re:Backdoors?

[mrami (664567)]

or that they aren't open to people at that level

If someone like the NSA knew how, I doubt they would let that information leak without a really, really good reason. And "think of the children" doesn't count in that arena.

which is nice.

At least, it's good to know. :)