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Ruling in Child-Porn Case Upholds Fifth Amendment Law

By: Justin Bourne

Posted: 12/17/2007

BURLINGTON, Vt. - U.S. Magistrate Judge Jerome Niedermeier has ruled that prosecutors cannot force Sebastien Boucher, a man charged with transporting child pornography across the Canadian border on his laptop in 2006, to turn over the Pretty Good Privacy passphrase needed to access his hard drive.

According to Niedermeier, the Fifth Amendment gives Boucher the right to not turn over the passphrase in order to avoid self-incrimination. The judge threw out a grand jury's subpoena ordering Boucher to provide "any passwords" used on his Alienware laptop.

"Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him," Niedermeier wrote in an order dated Nov. 29. "Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop."

Boucher and his father crossed the Canadian border to enter the United States at Derby Line, Vt., on Dec. 17, 2006, Neidermeier wrote. In a "secondary inspection," Officer Chris Pike found about 40,000 images on a laptop computer on the back seat, the judge added. Pike reportedly said some of the images "appeared to be pornographic, based on the file names."

The investigation was turned over to Special Agent Mark Curtis of Immigration and Customs Enforcement because of his expertise in recognizing child pornography. Curtis reported that the Z drive of Boucher's laptop contained files named "2yo getting raped during diaper change," and "Pree Teen Bondage."

 

Curtis said he could not open the "2yo getting raped during diaper change" file to view it but ascertained that it had been opened on Dec. 11, 2006. The "Pree Teen Bondage" file reportedly contained video imagery of a preteen girl masturbating.

 

Boucher reportedly waived his Miranda rights and agreed to direct agents to the pornography on his computer. The agents said they allowed Boucher to navigate through the Z drive, then continued the investigation after asking him to leave the room. Curtis said he located thousands of additional pornographic images and animation depicting adult and child pornography.

 

Boucher was arrested, and the laptop was seized and shut down.

 

"Mike Touchette of the Vermont Department of Corrections took possession of the laptop on Dec. 29, 2006, and created a mirror image of the contents of the laptop," Niedermeier wrote. "The court opinion further stated that when Touchette began exploring the computer, he could not access the Z drive because it was protected by encryption algorithms through the use of the PGP software, which requires a password to access the drive. Since shutting down the laptop, the government has been unable to access the Z drive in order to view the images and videos containing child pornography."

 

The grand jury issued a subpoena to Boucher, ordering him to reveal the password necessary to unlock the Z drive. Boucher's legal counsel moved to block the subpoena, arguing that he had a Fifth Amendment right to not turn over the password. The prosecution then sought to have Boucher enter the password himself.

 

According to Niedermeier, "entering in the password would be testimonial, and even the prosecution's alternative of asking the defendant to type in the passphrase when nobody was looking would be insufficient."

Orin Kerr, a former Department of Justice prosecutor who now is a law professor at George Washington University, wrote on his blog that he "tend[s] to think Judge Niedermeier was wrong, given the specific facts of this case."