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Showdown over encryption password in child porn case

First of its kind ... but not the last

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A bid by the US government to force a child porn suspect to surrender his encryption password has sparked fierce debate about whether the move violates constitutional protections against self-incrimination.

The case, which is reported here by The Washington Post, is likely the first time a court has waded into the issue. It almost certainly won't be the last, given the increasing use of encryption by businesses and individuals to protect reams of data stored on hard drives.

On one side of the issue are civil libertarians from such groups as the Electronic Privacy Information Center and the Electronic Frontier Foundation. They argue the Fifth Amendment, which protects suspects from government demands to testify against themselves, extends to passwords because they're stored in a suspect's head.

"The last line of defense really is you holding your own password," Lee Tien, a senior staff attorney at the EFF, said.

Indeed, a magistrate judge who has already ruled in the case seemed to agree. While suspects are required to turn over physical keys to a safes, they can't be forced to reveal combination because that would "convey the contents of one's mind," and act that's tantamount to testifying, Magistrate Judge Jerome J. Niedermeier wrote in a November ruling. "If (the defendant) does know the password, he would be face with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court."

Prosecutors are appealing that ruling.

On the other side of the issue are law enforcement officials, who say a precedent permitting suspects to withhold passwords would allow terrorists, pedophiles and other criminals to keep their illegal deeds off limits to police simply by encrypting them. Mark Rasch, a former federal prosecutor who is now with FTI Consulting, said that would be "dangerous".

The case concerns the investigation of Sebastien Boucher for possession of child pornography. In late 2006, the Canadian citizen with legal residency in the US was crossing the border into Vermont when a US Customs and Border Protection inspector searched his laptop. It contained files with titles such as "Two-year-old being raped during diaper change." The inspector also reviewed video files, including one that showed what appeared to be a preteen undressing and performing a sexual act.

Agents copied the contents of the Boucher's hard drive, but have been unable to access many of the files because they are encrypted by the military-grade Pretty Good Privacy program.

Boucher was arrested and charged with transportation of child pornography in interstate or foreign commerce. He faces a maximum of 20 years in prison. He has denied knowingly possessing child porn. ®

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