Here's an excerpt from my analysis of the Boucher case out of Vermont. It's called Is that an encrypted hard drive in your head? "When humans partner with computers to transmit encrypted information to others over an internet channel, this transmission most closely resembles a direct transmission of thought between two parties. In the same way that we cannot regulate pure thought, we cannot effectively regulate possession and transmission of prohibited information goods on hard drives and across cyberspace, if users enable anonymity and encryption applications. Consider, for instance, an obscene text written on paper. Now encrypt it on paper. Throw the original text away. This cipher text is not obscene. It is unreadable gibberish. It is difficult to argue that possession of the encrypted text alone constitutes possession of obscene or prohibited material. There are serious logical flaws that underlie the argument that possession or transmission of the same encrypted information on an information system, especially without direct access to the key, and perhaps not until the material is unencrypted, constitute an abuse of the law. Sebastien Boucher was detained at the U.S./Canada border with his laptop and a special agent, upon review of file names that suggested Boucher was in possession of child porn and, supposedly, the agent’s view of actual files, seized both Boucher and his machine. An investigator assigned to copy and access the files could not access Drive Z, which was protected by PGP. U.S. Magistrate Judge Jerome Niedermeier wrote that forcing Boucher to give up his password would be akin to forcing a “testimonial act” as the key exists only in Boucher’s mind and is not a physical object. Thus, it would be a fifth amendment violation. Niedermeier’s analysis turns on a fifth amendement analysis, but its main underpinnings are expressed in thoughts expressed like this: Unlike the situation in Doe II, Boucher would be compelled to produce his thoughts and the contents of his mind. (emphasis added).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. This is eminently correct, but it begs a far more important question: how in the world, short of charging Boucher with contempt, could the government force Boucher to surrender his password? Even if they were empowered to do so, it is clear that the quest is fruitless. The reason this is so is because Boucher’s encrypted information is not actually pornography. It is encrypted information that can be reassembled, given the proper key, into pornography. The impossibility of forcing Boucher to reveal his key underscores this reality, as hard as this may be for law enforcement to bear. The information is only as accessible as Boucher’s mind. Thus, his possession of encyrpted materials, without more, is about as prohibited as the possession of his thoughts or memories in regard to this pornography. Due to his access to encryption, Boucher and his machine are an intertwined entity. If we are to deal with information, we need to understand exactly what it is and what it is not. A computer, as stated above, offers storage of information and intelligence, which can be encrypted, and transmission of this same information and intelligence, a process wherein goods can be delivered both encrypted and anonymously, if desired. Interestingly, it is the ability to transmit information and intelligence anonymously, a conduit which has been examined far less frequently than encryption, which will offer irrefutable proof that we and our computers are inexorably intertwined, and, in essence, are of one mind, should we choose to avail ourselves of the technology that enables that state." If anyone wants the whole paper, pm me.