"Give up your password." A Fifth Amendment violation or valid law enforcement?

[Gfactor]

Ok. Now I’m reading the actual case. Here are some details that the media has ignored:

To gain access to drive Z and the files in question, the
grand jury has subpoenaed Boucher directing him to:

provide all documents, whether in electronic or
paper form, reflecting any passwords used or
associated with the Alienware Notebook Computer,
Model D9T, Serial No. NKD900TA5L00859, seized from
Sebastien Boucher at the Port of Entry at Derby
Line, Vermont on December 17, 2006.

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.

Here is an excerpt from the court’s analysis:

The act of producing even unprivileged evidence can have communicative aspects itself and may be “testimonial” and entitled to Fifth Amendment protection. United States v. Doe, 465 U.S. 605, 612 (1984) [hereinafter Doe I] (“Although the contents of a document may not be privileged, the act of producing the document may be.”). An act is testimonial when the act entails implicit statements of fact, such as dmitting that evidence exists, is authentic, or is within a suspect’s control. Doe v. United States, 487 U.S. 201, 209 (1988) [hereinafter Doe II]. The privilege against selfincrimination protects a suspect from being compelled to disclose any knowledge he has, or to speak his guilt. Id. at 210-11. The suspect may not be put in the “cruel trilemma” of choosing between self-accusation, perjury, or contempt. Id. at 212.

The government points to Doe II in support of its contention that entering the password is non-testimonial and therefore not privileged. In Doe II, a suspect was subpoenaed to sign a form requesting his bank records from banks in the Cayman Islands and Bermuda. Id. at 203. The suspect asserted his privilege against self-incrimination, arguing that signing the form would be testimonial and
incriminating. Id. at 207-09. But the form only spoke in the hypothetical, not referencing specific accounts or banks. Id. at 215. The Court held that the form did not acknowledge any accounts and made no statement, implicitly or explicitly, about the existence or control over any accounts. Id. at 215-16. Because signing the form made no statement about the suspect’s knowledge, the Court held that
the act lacked testimonial significance and the privilegedid not apply. Id. at 218.

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.

Unlike the situation in Doe II, Boucher would be compelled to produce his thoughts and the contents of his mind. In Doe II, the suspect was compelled to act to obtain access without indicating that he believed himself to have access. Here, when Boucher enters a password he indicates that he believes he has access.

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.

Here’s a link to the entire opinion: http://208.101.4.173/wholesale/download/Boucher.pdf

[Czarcasm]

@Turek

Maybe I’m being naive here, but if you argue that someone could legally be compelled to provide the password or be held in contempt, what if they could not, in fact, actually do so?

I have a crappy memory. I might have a hard drive that I encrypted 4 years ago. I can no longer remember the password. Am I then liable to be held in contempt in perpetuity because I can’t provide the password?

This is my question also. What kind of evidence could someone provide that shows that certain knowledge resides in a suspect’s mind?

[Gfactor]

Curiously, Magistrate Judge Niedermeier seems to miss the point that the subpoena doesn’t require Boucher to enter the password–it only requires him to produce documents that show the password. Perhaps he quoted the wrong portion of the subpoena because in the next sentence he says:

the government suggested that Boucher could
enter the password into the computer without the government,
the grand jury, or the Court observing or recording the
password in any way. The government also suggested that to
avoid any Fifth Amendment issue the Court could order that
the act of entering the password could not be used against
Boucher. The Court must now determine whether compelling
Boucher to enter the password into the laptop would violate
his Fifth Amendment privilege against self-incrimination.

Both the subpoena and the documents relating to the appeal of Niedermeier’s order are sealed, so it’s tough to get to the facts behind the order.

[Bryan_Ekers]

Personally, I’d just give them a fake password and when it didn’t work, I’d just say something was wrong with the computer. What now, John Law?

[simster]

I’m more curious about this aspect -

They want the password becuase the “think” items “might” be on the drive or that they “know” items are on the drive?

If the former, then providing the password allows the gov’t to find evidence it doesn’t already know about, which seems to be a violation, if the latter, then the gov’t already knows (but apparently can’t prove) without access.

[Gfactor]

@simster

I’m more curious about this aspect -

They want the password becuase the “think” items “might” be on the drive or that they “know” items are on the drive?

If the former, then providing the password allows the gov’t to find evidence it doesn’t already know about, which seems to be a violation, if the latter, then the gov’t already knows (but apparently can’t prove) without access.

They know some of the contents because Boucher previously gave them access to it:

Agent Curtis asked Boucher to show him where the files
he downloaded from the newsgroups were located on the
laptop. Boucher was allowed access to the laptop and
navigated to a part of the hard drive designated as drive Z.
Agent Curtis did not see Boucher enter a password to access
drive Z. Agent Curtis began searching through drive Z
in Boucher’s presence though Boucher appeared to be
uncomfortable with this.
Agent Curtis located many adult pornographic files and
one video entitled “preteen bondage.” Agent Curtis viewed
the video and observed what appeared to be a preteen girl
masturbating. He asked Boucher whether he had any similar
files on his laptop, and Boucher again stated that he
usually deletes files that he discovers to contain child
pornography.
Agent Curtis then asked Boucher to leave the room and
continued to examine drive Z. He located several images and
videos of child pornography in drive Z. After consulting
with the United States Attorney’s office, Agent Curtis
arrested Boucher. He then seized the laptop, after shutting
it down.

(Emphasis added to underscore stupidity).

[simster]

@Gfactor

They know some of the contents because Boucher previously gave them access to it:

(Emphasis added to underscore stupidity).

wow - just wow - except for the fact that possessing it (even accidently/unknowningly) is criminal - this is the part where he should try and cooperate to help the agents determine the source - assuming its not him.

at this point, for this trial, the password is immatterial - its granting access to ‘known’ items, and of itself isn’t testimony - had the officers not first hand seen the evidence - voluntarily given to them by the accused - then the password would be priveledged.

but it is an interesting can of worms, no doubt.

[Gfactor]

@simster

at this point, for this trial, the password is immatterial - its granting access to ‘known’ items, and of itself isn’t testimony - had the officers not first hand seen the evidence - voluntarily given to them by the accused - then the password would be priveledged.

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.

Again, the issue is whether he can be forced to enter the paasword–not disclose it–all of the authorities agree that requiring him to disclose the password, at least without immunity, is barred by the Fifth Amendment. The prosecution has conceded the issue and will not be able to raise it on appeal. Nobody in the proceedings seems to have raised the *Rogers * issue that I mentioned before.

[simster]

@Gfactor

Again, the issue is whether he can be forced to enter the paasword–not disclose it–all of the authorities agree that requiring him to disclose the password, at least without immunity, is barred by the Fifth Amendment. The prosecution has conceded the issue and will not be able to raise it on appeal. Nobody in the proceedings seems to have raised the *Rogers * issue that I mentioned before.

Right - the press would have you think they are demanding the password without prior knowledge of the contents - and I think that is the key point.

[DSYoungEsq]

@Gfactor

Again, the issue is whether he can be forced to enter the paasword–not disclose it–all of the authorities agree that requiring him to disclose the password, at least without immunity, is barred by the Fifth Amendment. The prosecution has conceded the issue and will not be able to raise it on appeal. Nobody in the proceedings seems to have raised the *Rogers * issue that I mentioned before.

So the issue is no longer a question of him “saying” the password, but rather a question of forcing him to accomplish a specific action, that is, typing the password into the keyboard. This might prove interesting, in that one the one hand, that’s similar to compelling an action (stand in this line, e.g.), but on the other hand it’s functionally similar to asking him to write out the password, which would certainly be just as covered by the Fifth Amendment as saying it out loud would.

[Gfactor]

@simster

Right - the press would have you think they are demanding the password without prior knowledge of the contents - and I think that is the key point.

It’s a part of one of the arguments that the prosecution made before the magistrate judge, based on the foregone conclusion doctrine, which is of questionable pedigree, and would have to be substantially expanded to cover this case.

And the fact that government agents examined the drive and found kiddie porn is in the stories, although it is reported summarily, so we miss out on the important details.

*E.g., *

Curtis asked Boucher “to use the computer” to show him the files he downloads. Curtis reviewed the video files, observing one that appeared to be a preteen undressing and performing a sexual act, among other graphic images, the affidavit says.

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/15/AR2008011503663.html

But it gets misleading when they bring up drive Z:

The agents seized the laptop, and a Vermont Department of Corrections investigator copied its contents. But the investigator could not get access to the drive Z content because it was protected by Pretty Good Privacy, a form of encryption software used by intelligence agencies in the United States and around the world that is widely available online. PGP, like all encryption algorithms, requires a password for decryption.

For more than a year, the government has been unable to view drive Z.

---

He said that he agreed to show the agents where he downloaded his files “because I was sure that there was nothing bad in those files.” He also said that he felt coerced: “I felt like they really want to force me to do it, like I have no choice.”

Asked whether he typed in a password to unlock the drive so the agents could view it, he replied: “I prefer not to answer that one.”

Id.

But see,

Some of the files on Mr. Boucher’s computer were encrypted using a program called Pretty Good Privacy, and Mr. Boucher helped the agent look at them, apparently by entering an encryption code. The agent said he saw lots of revolting pornography involving children.

http://www.nytimes.com/2008/01/07/us/07bar.html?ref=us

[Vox_Imperatoris]

@iamthewalrus_3

A logical argument (not legal) is: If he made up his own language and wrote all his notes in this made up language, would he be required to translate it for the police when they asked what was in the papers? It seems to me that he clearly would not.

It seems to me that he would, although I don’t know if the law would back me up. The police already have possession of the papers; he’s not required to divulge anything they don’t already have the right to know, they are just unable to read it. Of course, he could lie, but then he could be held in contempt by anyone who later found out somehow.

And can someone answer what would happen if he claimed to have forgotten, and there was no way that they could prove he hadn’t beyond reasonable doubt? Or if he put in a dummy password?

Valete,
Vox Imperatoris

[Gfactor]

Zombie. :eek: