Intellectual Property Law

Constitutional Rights and Digital Dilemmas

By Sheppard Mullin

Government attempts to commandeer encrypted passwords and to search laptops at border points raise a host of constitutional issues from self-incrimination to unlawful search and seizure. On November 29, 2007, in a case believed to be the first of its kind, a U.S. District Court in Vermont ruled that the government could not require a man to type in a password that would unlock his computer because doing so would violate his Fifth Amendment right against self-incrimination. In addition, the Central District of California has found that the government must have a reasonable suspicion to search a person's computer at a point of entry to the United States. Both decisions are on appeal.

In U.S. v. Arnold, the government seized defendant Sebastien Boucher's laptop computer at the Canadian - U.S. border, after allegedly viewing images of child pornography on it. However, the government could not later gain access to the Z drive because it was protected by Pretty Good Privacy ("PGP"), a form of encryption software used by intelligence agencies and is also widely available online. PGP, like all encryption algorithms, requires a password for decryption. The government subpoenaed Boucher to enter the password so that it could access his computer.

Granting Boucher's motion to quash, the district court ruled that the government could not compel Boucher to provide the password, even if he merely typed it into the computer without disclosing the actual password to the government. The court found that the act of entering in a password and giving the government access to the drive was testimonial and therefore privileged. By entering the password, Boucher would be forced to disclose the fact that he knew the password and had control over the files on drive Z. In such a situation, Boucher faced the trilemma forbidden by the Fifth Amendment, incriminate himself, lie under oath, or find himself in contempt of court. While a defendant may be required to perform non-testimonial acts such as provide fingerprints, blood, or the sound of his voice, he cannot be required to display the contents of his mind. A password is not like a key but rather like the combination to a safe, which is in the defendant's mind and therefore beyond the reach of a grand jury subpoena.

The government has appealed the decision in part on the grounds that Boucher may have waived his Fifth Amendment by entering the password at the initial border inspection.

In October 2006, the Central District Court of California in the case U.S. v. Arnold ruled that the government's search of the defendant's laptop, hard drive, and storage devices at the Los Angeles International Airport violated the Fourth Amendment, because the search was not based on an articulable, reasonable suspicion. Unlike suitcases, the court concluded "electronic storage devices function as an extension of own memory. . . . Therefore, government intrusions into the mind--specifically those that would cause fear or apprehension in a reasonable person are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature."

Other circuits disagree with the holding in Arnold, which is currently before the Ninth Circuit on appeal. But for now, it remains good law.

Full post as published by Intellectual Property Law on January 23, 2008 (boomark / email).