United States v. Boucher
Encyclopedia
In re Boucher, No. 2:06-mj-91, 2009 WL 424718
, is a federal criminal
case
in Vermont
, which was the first to address directly the question of whether a person can be compelled to reveal his or her encryption
passphrase
or password, despite the U.S. Constitution's Fifth Amendment
protection against self-incrimination
. A magistrate judge held that producing the passphrase would constitute self-incrimination. In its submission on appeal to the District Court, the Government stated that it does not seek the password for the encrypted hard drive, but only sought to force Boucher to produce the contents of his encrypted hard drive in an unencrypted format by opening the drive before the grand jury. A District Court judge agreed with the government, holding that, given Boucher's initial cooperation in showing some of the content of his computer to border agents, producing the complete contents would not constitute self-incrimination.
In late 2009, Boucher finally gave up his password and investigators found numerous images and videos depicting sexual abuse of children. In January 2010, Boucher was sentenced to 3 years in prison and deported.
Sebastien Boucher's laptop computer was inspected when he crossed the border from Canada
into the USA at Derby Line, Vermont. The laptop was powered-up when the border was crossed, which allowed its contents to be browsed. Images containing child pornography
were allegedly seen by Immigration and Customs Enforcement (ICE) border agents who seized the laptop, questioned Boucher and then arrested him on a complaint
charging him with transportation of child pornography in violation of 18 U.S.C. 2252A(a)(1). The laptop was subsequently powered-down. When the laptop was switched on and booted on 29 December 2006, it was not possible to access its entire storage capability. This was because the laptop had been protected by PGP Disk encryption. As a result, investigators working for the US government were unable to view the contents of drive "Z:", which allegedly contained the illegal content. A grand jury then subpoena
ed the defendant to provide the password to the encryption key
protecting the data.
stated "Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him." Accordingly, Niedermeier quashed the subpoena.
On January 2, 2008, the United States appealed the magistrate's opinion to the District Court in a sealed motion (court docket, case #: 2:06-mJ-00091-wks-jjn-1). The appeal was heard by U.S. District Judge William K. Sessions. Oral arguments were scheduled for April 30, 2008.
On February 19, 2009, Judge Sessions reversed the magistrate's ruling and directed Boucher "to provide an unencrypted version of the Z drive viewed by the ICE agent."
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
, is a federal criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
in Vermont
Vermont
Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...
, which was the first to address directly the question of whether a person can be compelled to reveal his or her encryption
Encryption
In cryptography, encryption is the process of transforming information using an algorithm to make it unreadable to anyone except those possessing special knowledge, usually referred to as a key. The result of the process is encrypted information...
passphrase
Passphrase
A passphrase is a sequence of words or other text used to control access to a computer system, program or data. A passphrase is similar to a password in usage, but is generally longer for added security. Passphrases are often used to control both access to, and operation of, cryptographic programs...
or password, despite the U.S. Constitution's Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
protection against self-incrimination
Self-incrimination
Self-incrimination is the act of accusing oneself of a crime for which a person can then be prosecuted. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; indirectly, when information of a...
. A magistrate judge held that producing the passphrase would constitute self-incrimination. In its submission on appeal to the District Court, the Government stated that it does not seek the password for the encrypted hard drive, but only sought to force Boucher to produce the contents of his encrypted hard drive in an unencrypted format by opening the drive before the grand jury. A District Court judge agreed with the government, holding that, given Boucher's initial cooperation in showing some of the content of his computer to border agents, producing the complete contents would not constitute self-incrimination.
In late 2009, Boucher finally gave up his password and investigators found numerous images and videos depicting sexual abuse of children. In January 2010, Boucher was sentenced to 3 years in prison and deported.
Facts
On 17 December 2006, the defendantDefendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
Sebastien Boucher's laptop computer was inspected when he crossed the border from Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
into the USA at Derby Line, Vermont. The laptop was powered-up when the border was crossed, which allowed its contents to be browsed. Images containing child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
were allegedly seen by Immigration and Customs Enforcement (ICE) border agents who seized the laptop, questioned Boucher and then arrested him on a complaint
charging him with transportation of child pornography in violation of 18 U.S.C. 2252A(a)(1). The laptop was subsequently powered-down. When the laptop was switched on and booted on 29 December 2006, it was not possible to access its entire storage capability. This was because the laptop had been protected by PGP Disk encryption. As a result, investigators working for the US government were unable to view the contents of drive "Z:", which allegedly contained the illegal content. A grand jury then subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
ed the defendant to provide the password to the encryption key
Key (cryptography)
In cryptography, a key is a piece of information that determines the functional output of a cryptographic algorithm or cipher. Without a key, the algorithm would produce no useful result. In encryption, a key specifies the particular transformation of plaintext into ciphertext, or vice versa...
protecting the data.
Decision of the United States District Court
On November 29, 2007, U.S. Magistrate Judge Jerome Niedermeier of the United States District Court for the District of VermontUnited States District Court for the District of Vermont
The United States District Court for the District of Vermont is the Federal district court whose jurisdiction is the federal district of Vermont. The court has locations in Brattleboro, Burlington, and Rutland. The Court was created under the Judiciary Act of 1791 under the jurisdiction of the...
stated "Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him." Accordingly, Niedermeier quashed the subpoena.
On January 2, 2008, the United States appealed the magistrate's opinion to the District Court in a sealed motion (court docket, case #: 2:06-mJ-00091-wks-jjn-1). The appeal was heard by U.S. District Judge William K. Sessions. Oral arguments were scheduled for April 30, 2008.
On February 19, 2009, Judge Sessions reversed the magistrate's ruling and directed Boucher "to provide an unencrypted version of the Z drive viewed by the ICE agent."
See also
- Key disclosure lawKey disclosure lawKey disclosure laws, also known as mandatory key disclosure, is legislation that require individuals to surrender cryptographic keys to law enforcement. The purpose is to allow access to material for confiscation or digital forensics purposes and use it either as evidence in a court of law or to...
- United States v. HubbellUnited States v. HubbellUnited States v. Hubbell, 530 U.S. 27 , was United States Supreme Court case involving Webster Hubbell, who had been indicted on various tax-related charges, and mail and wire fraud charges, based on documents that the government had subpoenaed from him...
, - United States v. ArnoldUnited States v. ArnoldUnited States v. Arnold, 523 F.3d 941 , is a United States court case in which the United States Court of Appeals for the Ninth Circuit held that the Fourth Amendment to the United States Constitution does not require government agents to have reasonable suspicion before searching laptops or other...
External links
- Judge: Man can't be forced to divulge encryption passphrase, by Declan McCullagh, CNet News
- Feds appeal loss in PGP compelled-passphrase case, by Declan McCullagh, CNet News
- Opinion and Order In re: Grand Jury Subpoena, Nov. 29, 2007, Case No. 2:06-mJ-91, document 35. PACERPACER (law)PACER is an electronic public access service of United States federal court documents. The system is managed by the Administrative Office of the United States Courts...
account registration required, but there is no charge for viewing this document. - UK Court Parts with US Court Regarding Compelled Disclosure of Encryption Keys