fyi: Encrypted laptop poses legal dilemma

[' =JeffH ']

From:    dewayne at warpspeed.com (Dewayne Hendricks)
Subject: [Dewayne-Net] Encrypted laptop poses legal dilemma
To:      Dewayne-Net Technology List <xyzzy at warpspeed.com>
Date:    Thu, 07 Feb 2008 15:38:22 -0800


[Note:  This item comes from reader Randall.  DLH]

From: Randall <rvh40 at insightbb.com>
Date: February 7, 2008 1:53:24 PM PST
To: David Farber <dave at farber.net>, Dewayne Hendricks <dewayne at warpspeed.com>

<http://news.yahoo.com/s/ap/computer_privacy>

<http://snipurl.com/1z7t0>


Encrypted laptop poses legal dilemma

By JOHN CURRAN, Associated Press Writer

When Sebastien Boucher stopped at the U.S.-Canadian border, agents who  
inspected his laptop said they found files containing child pornography.

But when they tried to examine the images after his arrest,  
authorities were stymied by a password-protected encryption program.

Now Boucher is caught in a cyber-age quandary: The government wants  
him to give up the password, but doing so could violate his Fifth  
Amendment right against self-incrimination by revealing the contents  
of the files.

Experts say the case could have broad computer privacy implications  
for people who cross borders with computers, PDAs and other devices  
that are subject to inspection.

"It's a very, very interesting and novel question, and the courts have  
never really dealt with it," said Lee Tien, an attorney with the  
Electronic Frontier Foundation, a San Francisco-based group focused on  
civil liberties in the digital world.

For now, the law's on Boucher's side: A federal magistrate here has  
ruled that forcing Boucher to surrender the password would be  
unconstitutional.

The case began Dec. 17, 2006, when Boucher and his father were stopped  
at a Derby Line, Vt., checkpoint as they entered the U.S.

Boucher, a 30-year-old drywall installer in Derry, N.H., waived his  
Miranda rights and cooperated with agents, telling them he downloads  
pornography from news groups and sometimes unknowingly acquires images  
that contain child pornography.

Boucher said he deletes those images when he realizes it, according to  
an affidavit filed by Immigration and Customs Enforcement.

At the border, he helped an agent access the computer for an initial  
inspection, which revealed files with names such as "Two year old  
being raped during diaper change" and "pre teen bondage," according to  
the affidavit.

Boucher, a Canadian with U.S. residency, was accused of transporting  
child pornography in interstate or foreign commerce, which carries up  
to 20 years in prison. He is free on his own recognizance.

The laptop was seized, but when an investigator later tried to access  
a particular drive, he was thwarted by encryption software from a  
company called Pretty Good Privacy, or PGP.

A grand jury subpoena to force Boucher to reveal the password was  
quashed by federal Magistrate Jerome Niedermeier on Nov. 29.

"Producing the password, as if it were a key to a locked container,  
forces Boucher to produce the contents of his laptop," Niedermeier  
wrote. "The password is not a physical thing. If Boucher knows the  
password, it only exists in his mind."

Niedermeier said a Secret Service computer expert testified that the  
only way to access Boucher's computer without knowing the password  
would be to use an automated system that guesses passwords, but that  
process could take years.

The government has appealed the ruling.

Neither defense attorney James Budreau nor Vermont U.S. Attorney  
Thomas Anderson would discuss the charge.

"This has been the case we've all been expecting," said Michael  
Froomkin, a professor at the University of Miami School of Law. "As  
encryption grows, it was inevitable there'd be a case where the  
government wants someone's keys."

[snip]


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