16 Jan 2008

Is Typing Your Password Self-Incrimination?

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This legal case raises intriguing issues of the meaning of the law in new technological contexts.

I think the judge is probably right.

The federal government is asking a U.S. District Court in Vermont 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.

The case, believed to be the first of its kind to reach this level, raises a uniquely 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. FBI and Justice Department officials, meanwhile, 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 purely 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 J. Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, 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, said Boucher’s attorney, James Boudreau of Boston. He said it would be “inappropriate” to comment while the case is pending. Justice Department officials also declined to comment.


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