Legal Research

U.S. Courts Study Demand That Suspect Unlock Computer Files

By David Badertscher, PLL

Source: Crime and Justice News, January 16, 2008.

"The federal government is asking a Vermont federal judge to order a man to type a password that would unlock files on his computer, despite his claim that doing so would constitute self-incrimination, reports the Washington Post. The case, believed to be the first of its kind to reach the federal court level, raises a digital-age question about how to balance privacy and civil liberties against the government's responsibility to protect the public. The case, which involves suspected possession of child pornography, comes as more Americans turn to encryption to protect the privacy and security of files on their laptops and thumb drives. Justice Department officials have said that encryption is allowing terrorists and criminals to communicate their plots covertly."

"Criminals and terrorists are using 'relatively inexpensive, off-the-shelf encryption products,' said John Miller, the FBI's assistant director of public affairs. When the intent is to hide evidence of a crime, 'there needs to be a logical and constitutionally sound way for the courts' to allow law enforcement access to the evidence, he said. On Nov. 29, Magistrate Judge Jerome Niedermeier ruled that compelling Sebastien Boucher, 30, a Vermont drywall installer, to enter his password into his laptop would violate his Fifth Amendment right against self- incrimination. '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,' the judge said. The government has appealed, and the case is being investigated by a grand jury."

Washington Post

Full post as published by New York Supreme Court Criminal Term Library on January 16, 2008 (boomark / email).