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Child porn suspect ordered to decrypt own hard drive

Self-decryption not self-incrimination

In a move sure to stoke debates over constitutional protections against self-incrimination in the digital age, a federal judge has ordered a child porn suspect to decrypt his hard drive so prosecutors can inspect its contents.

In a ruling issued last month, US District Judge William Sessions in Vermont ruled criminal defendant Sebastien Boucher does not have a constitutional right to keep the files encrypted. The ruling reversed an earlier decision by a federal magistrate that said forcing Boucher to enter his password into his laptop would violate his Fifth-Amendment rights against self incrimination. Boucher's attorney is appealing Sessions's ruling, according to CNET News, which reported the story earlier.

The case is believed to be one of the first times a court has decided whether the Fifth Amendment bars prosecutors from forcing a criminal defendant to surrender a computer password. It's well settled that suspects must turn over keys if they're deemed relevant to a criminal case. Compelling a defendant to turn over the combination to a safe, on the other hand, has generally been considered off limits because it would "convey the contents of one's mind," an act that's tantamount to testifying, Magistrate Judge Jerome J. Niedermeier wrote in a November ruling in the case.

Boucher was arrested in late 2006 while entering the US from Canada when border agents claimed they found images of child pornography on his laptop. Boucher waived his Miranda rights and allegedly told the agents he may have downloaded child pornography. The laptop was then shut down.

Nine days later, authorities armed with a subpoena tried to access the pictures again and this time were unable to inspect the hard drive's contents because it was protected by encryption software from PGP, or Pretty Good Privacy.

Sessions's ruling came after prosecutors narrowed earlier requests and said they only wanted him to decrypt the hard drive contents before a grand jury, apparently by typing in his passphrase in their presence. Sessions reached his decision after concluding the act of producing an unencrypted version of the hard drive wasn't necessary to authenticate its contents, presumably based on Boucher's statements to border agents. ®

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