Name:
United States v Boucher
URL's to Opinion:
http://www.volokh.com/files/Boucher.pdf
Special Agent Mark Curtis of Immigration and Customs Enforcement was asked to investigate further due to his experience and training in recognizing child pornography. This revealed a file named “2yo getting raped during diaper change†which had been accessed December 11, 2006. Boucher was read his Miranda rights which Boucher waived and agreed to cooperate with agents. The investigation continued and revealed an area designated as drive Z which contained more pornographic type files as well as a video named “preteen bondage.†This video appeared to Curtis to contain a preteen girl masturbating.
The laptop was seized and Boucher was arrested. He was later free on his own recognizance.
Mike Touchette of the Vermont Department of Corrections continued the investigation on December 29, 2006. He created a mirror image of the original. His investigation was not able to access the drive Z area due to Pretty Good Privacy (PGP) encryption and password protection. Secret Service Agent Matthew Fasvlo with experience and training in computer forensics testified before a grand jury that access to the encrypted area would be nearly impossible without the password. The grand jury issued a subpoena for Boucher to provide the appropriate access to the drive Z area.
Boucher moved to quash the subpoena on the grounds it violated his Fifth Amendment right against self-incrimination.
- entering the password is testimonial
- effect of non-viewing
- effect of exclusion from evidence
- foregone conclusion
The act of producing even unprivileged evidence can have communicative aspects itself and may be “testimonial†and entitled to Fifth Amendment protection. United States v. Doe, 465 U.S. 605, 612 (1984). (“Although the contents of a document may not be privileged, the act of producing the document may be.â€).
An act is testimonial when the act entails implicit statements of fact, such as admitting that evidence exists, is authentic, or is within a suspect's control. Doe v. United States, 487 U.S. 201, 209 (1988).
A password, like a combination, is in the suspect's mind, and is therefore testimonial and beyond the reach
of the grand jury subpoena.
The investigating agents at the border could have collected findings at the time of the search to another media. Simple tools like screen shots, directory listings, and sample files would have assisted the case to a conclusion. As it stands now, the forbidden trilemma: self-incriminate, lie under oath, or finding of in contempt of court has afforded the accused additional protections beyond those imposed by the digital technologies.
United States v Boucher
URL's to Opinion:
http://www.volokh.com/files/Boucher.pdf
- Court:
- Overview:
- Facts:
Special Agent Mark Curtis of Immigration and Customs Enforcement was asked to investigate further due to his experience and training in recognizing child pornography. This revealed a file named “2yo getting raped during diaper change†which had been accessed December 11, 2006. Boucher was read his Miranda rights which Boucher waived and agreed to cooperate with agents. The investigation continued and revealed an area designated as drive Z which contained more pornographic type files as well as a video named “preteen bondage.†This video appeared to Curtis to contain a preteen girl masturbating.
The laptop was seized and Boucher was arrested. He was later free on his own recognizance.
Mike Touchette of the Vermont Department of Corrections continued the investigation on December 29, 2006. He created a mirror image of the original. His investigation was not able to access the drive Z area due to Pretty Good Privacy (PGP) encryption and password protection. Secret Service Agent Matthew Fasvlo with experience and training in computer forensics testified before a grand jury that access to the encrypted area would be nearly impossible without the password. The grand jury issued a subpoena for Boucher to provide the appropriate access to the drive Z area.
Boucher moved to quash the subpoena on the grounds it violated his Fifth Amendment right against self-incrimination.
- Rules/Issues:
- entering the password is testimonial
- effect of non-viewing
- effect of exclusion from evidence
- foregone conclusion
The act of producing even unprivileged evidence can have communicative aspects itself and may be “testimonial†and entitled to Fifth Amendment protection. United States v. Doe, 465 U.S. 605, 612 (1984). (“Although the contents of a document may not be privileged, the act of producing the document may be.â€).
An act is testimonial when the act entails implicit statements of fact, such as admitting that evidence exists, is authentic, or is within a suspect's control. Doe v. United States, 487 U.S. 201, 209 (1988).
A password, like a combination, is in the suspect's mind, and is therefore testimonial and beyond the reach
of the grand jury subpoena.
- Holding:
- Other Discusion:
The investigating agents at the border could have collected findings at the time of the search to another media. Simple tools like screen shots, directory listings, and sample files would have assisted the case to a conclusion. As it stands now, the forbidden trilemma: self-incriminate, lie under oath, or finding of in contempt of court has afforded the accused additional protections beyond those imposed by the digital technologies.
- Footnotes: