Judge orders defendant to decrypt PGP-protected laptop

http://news.cnet.com/8301-13578_3-10172866-38.html

 

If Boucher knew his he had to cross the border there is no doubt that the laptop would be searched and he should have backed up and erased all files that might get him into trouble. That said he did a dum thing saying that he may have downloaded child porn, he should not have said anything and let the border guards tell him just is what is legal porn and what is not. You don't win anything for being honist.

 

PGP is 1 of the best WD Encryption software's available, I always see people trying to say it has a backdoor, but if that were the case the judge wouldn't need to order the defendant to enter his password, the guy seemed like an idiot anyways, generally you should not waive your right to remain silent!

If it were me, I would have refused and took a much lesser charge of hindering an investigation!

EDIT: Hmn read more of the case and found this

I wonder what the ending results were in this case?

EDIT: MORE about the strength of PGP, and the outcome of the case, he never gave them a password!

http://news.cnet.com/8301-13578_3-9834495-38.html

I don't think they got any kind of conviction on any of the charges either, but I could be wrong?

 

This second link you gave is from December 14, 2007, and it says that "A federal judge in Vermont has ruled that prosecutors can't force a criminal defendant accused of having illegal images on his hard drive to divulge his PGP (Pretty Good Privacy) passphrase."
But, the first link is newer, from February 26, 2009 and it says: "In an abrupt reversal, U.S. District Judge William Sessions in Vermont ruled that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, does not have a Fifth Amendment right to keep the files encrypted."

So, the second judge overturned the first one's decision, if I understood correctly, and that means he must decrypt data.

 

Expect an appeal and a reversal on this one from the Second Circuit. No way will it hold up. A password is in your mind and clearly is testimonial. For those not in the USA: the 5th Amendment says a defendant cannot, "be compelled in any criminal case to be a witness against himself."

 

Good observation Nebulus I found the link by googling "Boucher to unencrypt", but I didn't feel like going any further into the links, but the outcome would be interesting to read about!

I totally agree!

 

I think you should say "that SHOULD BE one of the universal principals of the constitutional state notion"

 

Yes, you are partly right. However, what makes the password testimonial is that it's in your mind only. Breath, blood, urine, etc. can be taken from you. Try to take a thought. To give up something in your mind is so clearly testimonial and would be blatant self-incrimination. Second Circuit will look at this and throw it out in no time.

 

Exactly

They cant force him to do anything in this case, they cant hold him down and extract the password from his brain, if the crap hit the fan, all they can do is charge him with hindering an investigation! but they shouldn't be able to charge him with such, because it still goes along the line of self-incrimination! I think

I still don't understand why their spending so much time and money on a case that only involves so called Illegal Animation? which is what the ICE Agent reported, all the real porn he seen was Adult Porn, what a waist of taxpayers money!
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Well, can't they just open the drive casing and access the drive platter directly in a specialized lab? That way they wouldn't need his password.

 

No. It is encrypted. All they would find, in even a "specialized lab," would be random gobbledeegook.

 

This is true. Encryption is the answer, as this defendant is proving.

 

What you mean "best"?

And are you saying that a TrueCrypt file container can be decrypted by someone else?

 

"One of the best" is an expression meaning, "It's great along with some others"; it's "one of the best" (among others). TrueCrypt would be among the others. A TrueCrypt container with a strong password is perfectly safe.

 

I do not want to derail this thread as it seems to have evolved into a discussion about best methods of encryption; however, I am very intrigued by the earlier discussion regarding the legality and constitutionality of compelling a defendant to disclose a password. Should that discussion continue here or should a new thread be started for the purpose of continuing the discussion?

 

Well, what would happen if the defendant/accused would state that he does not remember the password ?

Regardless whether it's true ?

What if he would use encryption software that would make the encrypted data permanently unaccessible if an incorrect password were entered (does stuff like this exist, commercially or open source) ?

 

Hardware encryption (making forensic imaging nearly impossible) with auto-destruct features is the way to go if you want this ability. For example, the Kingston DTSP, DTVP series and the Ironkey drives.

 

***Disclaimer***
None of the information that I post is intended to be relied upon as legal advice nor should it be. The intent of my posts is to respond to hypothetical situations solely and exclusively for the purpose of intellectual debate. People and organizations desiring actual legal advice should consult an attorney licensed to practice law in the relevant jurisdiction(s).

This is a good question. I think a factual determination would have to be made by the fact finder to determine whether or not the password was actually known. If it was believed that the defendant actually knew the password, then he/she would likely be held in contempt until disclosure. If it was believed that the defendant did not actually know the password, then nothing.

I think that you are referring to some sort of automatic destruction of the data. If so, I do think that this software is in existence and I honestly do not know how the court would handle this. My guess would be that the Court cannot compel the disclosure of something that is not capable of being produced. However, I at that point I would be worried about an accusation of spoliation of evidence if I were the defendant in such circumstances.

***Disclaimer***
None of the information that I post is intended to be relied upon as legal advice nor should it be. The intent of my posts is to respond to hypothetical situations solely and exclusively for the purpose of intellectual debate. People and organizations desiring actual legal advice should consult an attorney licensed to practice law in the relevant jurisdiction(s).

 

Software "solutions" that do this simply won't work. They are protecting containers and such that can be imaged and the "auto-destruct" is defeated. Hardware encryption on the other hand is a different story as all the encryption and decryption must take place on the co-processor which also has the ability to wipe the drive after X number of attempts. You can't clone the processing needed on the chip. Hardware encryption is far superior to software encryption (in my opinion), and this is one of the reasons why.

 

how about narco analysis of the accused.......if it is not against the us law....that is