The federal government is asking a U.S. District Court in Vermont to order a man to type a password that would unlock files on his computer, despite his claim that doing so would constitute self-incrimination.
The case, believed to be the first of its kind to reach this level, raises a uniquely digital-age question about how to balance privacy and civil liberties against the government's responsibility to protect the public.
The case, which involves suspected possession of child pornography, comes as more Americans turn to encryption to protect the privacy and security of files on their laptops and thumb drives. FBI and Justice Department officials, meanwhile, have said that encryption is allowing terrorists and criminals to communicate their plots covertly.
Criminals and terrorists are using "relatively inexpensive, off-the-shelf encryption products," said John Miller, the FBI's assistant director of public affairs. "When the intent . . . is purely to hide evidence of a crime . . . there needs to be a logical and constitutionally sound way for the courts" to allow law enforcement access to the evidence, he said.
'The forbidden trilemma'
On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. "If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court," the judge said.
The government has appealed, and the case is being investigated by a grand jury, said Boucher's attorney, James Boudreau of Boston. He said it would be "inappropriate" to comment while the case is pending. Justice Department officials also declined to comment.
But the ruling has caused controversy.
"The consequence of this decision being upheld is that the government would have to find other methods to get this information," said Marc Rotenberg, executive director of the Electronic Privacy Information Center. "But that's as it should be. That's what the Fifth Amendment is intended to protect."
Mark D. Rasch, a privacy and technology expert with FTI Consulting and a former federal prosecutor, said the ruling was "dangerous" for law enforcement. "If it stands, it means that if you encrypt your documents, the government cannot force you to decrypt them," he said. "So you're going to see drug dealers and pedophiles encrypting their documents, secure in the knowledge that the police can't get at them."
The case began Dec. 17, 2006, when Boucher, a Canadian citizen with legal residency in the United States, was driving from Canada into Vermont when he was stopped at the border by a U.S. Customs and Border Protection inspector. The inspector searched Boucher's car and found a laptop in the back seat, according to an affidavit filed with the court by Mark Curtis, a special agent with Immigration and Customs Enforcement who was called in by the inspector.
Boucher said the laptop was his, according to the affidavit. When the inspector saw files with titles such as "Two-year-old being raped during diaper change," he asked Boucher if the laptop contained child pornography. Boucher said he did not know because he was not able to check his temporary Internet files, according to the affidavit.
Curtis asked Boucher "to use the computer" to show him the files he downloads. Curtis reviewed the video files, observing one that appeared to be a preteen undressing and performing a sexual act, among other graphic images, the affidavit says.
Boucher was arrested and charged with transportation of child pornography in interstate or foreign commerce, which can carry a sentence of up to 20 years in prison for a first offense.
'Nearly impossible' to access files
The agents seized the laptop, and a Vermont Department of Corrections investigator copied its contents. But the investigator could not get access to the drive Z content because it was protected by Pretty Good Privacy, a form of encryption software used by intelligence agencies in the United States and around the world that is widely available online. PGP, like all encryption algorithms, requires a password for decryption.
For more than a year, the government has been unable to view drive Z.
A government computer forensics expert testified that it is "nearly impossible" to access the files without the password, the judge wrote. "There are no 'back doors' or secret entrances to access the files," he wrote. "The only way to get access without the password is to use an automated system which repeatedly guesses passwords. According to the government, the process to unlock drive Z could take years . . . "
In his ruling, Niedermeier said forcing Boucher to enter his password would be like asking him to reveal the combination to a safe. The government can force a person to give up the key to a safe because a key is physical, not in a person's mind. But a person cannot be compelled to give up a safe combination because that would "convey the contents of one's mind,'' which is a "testimonial" act protected by the Fifth Amendment, Niedermeier said .
In a phone interview, Boucher said that he likes to download Japanese cartoons and occasionally adult pornography, but that he does not seek to view child porn. He sometimes inadvertently receives images of child pornography when he downloads the other material, but reviews what he downloads to "clean out" the child porn, he said. It is not illegal to possess animated child porn.
He said that he agreed to show the agents where he downloaded his files "because I was sure that there was nothing bad in those files." He also said that he felt coerced: "I felt like they really want to force me to do it, like I have no choice."
Asked whether he typed in a password to unlock the drive so the agents could view it, he replied: "I prefer not to answer that one."
Boucher added the encryption software to protect the rest of his computer from viruses that might accompany the downloaded files, he said.
Orin S. Kerr, an expert in computer crime law at George Washington University, said that Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive. "If you admit something to the government, you give up the right against self-incrimination later on," said Kerr, a former federal prosecutor.
Lee Tien, senior staff attorney at the Electronic Frontier Foundation, a civil liberties group, said encryption is one of the few ways people can protect what they write, read and watch online. "The last line of defense really is you holding your own password," he said. "That's what's at stake here."
Staff researcher Magda Jean-Louis contributed to this report.
8 comments:
I thought this was an interesting case involving privacy laws and the issues of electronic civil liberties. I honestly found myself siding with both views of the argument on this too. I thought both sides make fascinating points here (though honestly in this case I can see where he did "give up his right to privacy" when he opened the files the first time). Is a password really protected by the 5th Amendment? Where I eventually have to come down is, "I guess so."
Electronic law enforcement is going to be a growing thing in the US and around the world. Are we going to have Net Police eventually? Do we need them? I mean in the past year alone I have heard more and more about cases involving the net. From "To Catch A Predator" to cyber-bullying to email scams to identity theft, the number of crimes and ways to commit crimes on the internet are growing. What can be done to protect the innocent, find and punish the guilty, and help stem the tide of net crimes?
The Identity Theft Resource Center, for instance, listed more than 125 million records reported compromised in the United States last year. That's a sixfold increase from the nearly 20 million records reported in 2006.
- Source:
http://www.msnbc.msn.com/id/22685515/
Wow, Pope, this one is an intellectual doozy, I must say...
Well, we already do have a net police, so to speak. The FBI already has a cyber crimes division that specializes in crimes committed in the borderless ether that is cyber space. Most of the crimes they deal with are things like child pornography cases, electronic extortion, various kinds of denial of service attacks, etc. etc.
As far as this case is concerned and others like it, ugh. Frankly, I too see both sides. But I think the whole argument of a combination lock vs. key argument doesn't fly with me anyway. A safe can ALWAYS be opened, even if you can't get the combination for it. Simply get a warrent, and cut it open.
With ecrypted data, on the other hand, there's really no recourse either. If I have a file encrypted with a regular everyday 128 bit encryption code, the only way I can crack it is with a brute force algorithm that literally tries every single combination and permutation of characters available... And if I ran this program continuously 24 hours a day on a typical, high end desktop machine, it could take as long as 40 years to find the right password. Possibly even longer, depending on how long the password actually is.
If we protect a person's right to hold their password indefinately without any caveats or legal recourse to get it, it's practically handing legal immunity to people who traffic child pornography, terroristsm, people who engage in cyber crimes, etc.
Legally, we could of course require all encryption software sold or used in the united states to include a "backdoor" for law enforcement purposes, but guess how long that would last? People will just use software downloaded illegally from out of country, or freely available homegrown software that joe schmoe wrote without a backdoor.
Of course, being a parent, this particular case is really a hotbutton issue for me, so I'm trying to stay objective... But I can't help but feel that the endangerment of children, videos of them being raped and/or sexually abused, should trump an individuals right to privacy. If there's probable cause, i.e. files called "Al Quaeda Operatives on the West Coast" or "2 year old being raped during a diaper change" (jesus christ I can't even bear typing that), then there's reason to believe that you might be engaging in a very serious felony (and a piece of shit, to boot), so you can either give the FBI your password, or sit in a cell until you do.
But then the part of me that considers myself a constitutional conservative balks that I could even suggest such a thing. The 5th amendment is as important as any other in the document, and a cornerstone of our individual rights.
:|
But, if I were sitting on the Supreme Court and had to make a decision on this or a similar case, I would probably have to find in favor of the pederast piece of shit.
But doing so would make me feel like I'd done something wrong and shameful.
I guess the real question is:
Is individual privacy and the right against self incrimination more important than catching child pornographers?
Is that absolute umbrella of protection from our own government worth letting those who brutally violate children continue to do business? Is there enough consensus out there to say "we can allow a few concessions if there's enough probable cause to believe someone's life or safety is in danger"
I dunno. It's a slippery slope.
Ok, I actually am not going to ring in on the specifics of the case because I see the conundrum and it has been covered by other contributers. I have a question for Beck, though. What is the deal with constitutional conservatives? I am not targeting Beck's beliefs specifically, I just don't understand the concept of constitutional conservatism, and I ask because I have heard it a lot lately from Libertarian minded conservatives.
Ok, I kind of see the merit (a little), but if the argument is to go back to the intentions of the founding fathers or the raw constitutional language/law, that is a little bizarre. One, we can't know what they intended, we must interpret, which is what we generally do. We use the existing framework and tweak it to modern issues as they arise. My understanding is that the virtue (and success) of the constitution is rooted in its malleability. Two, going back to a literal reading of the original documents would strip away a lot of beneficial laws like the Civil Rights and Voting Rights acts. They are not inherently constitutional, but they are net goods for the country that come from interpreting the spirit, not the letter of the document. Moreover, literal readings would justify things like slavery and give votes only to white land-holding men.
The question is where you draw the line, and if you have to draw a line you are either basing opinions on arbitrary opinions or doing your own interpreting. Either way, I fail to see the legitimacy of strict constitutionalism. It smells like a farce to claim to want a more "true" reading of the constitution. The document breathes; that is its virtue. I am not saying all laws that claim to be based on some reading of the constitution are valid or right--there is a lot of stretching, for good or for ill. But where does one decide "yes this is what the founders meant" without going all the way back to the literal meaning and accepting slavery, no votes for women, no federal control of commerce, etc? Many libertarians I know sidestep the issue by saying most of these issues were intended to be delegated to the states, but that just allows things like Jim Crow laws to exist.
I guess the question is one of clarification and justification. 1) What did the founders intend and how do we know that? 2) Where and how doe we decide how the constitution speaks to issues like this? 3) Who gets to decide? For instance, I might believe that the founders where extremely liberal and wanted to institute things universal suffrage and end slavery but knew it was unfeasible at the time, so they planned the constitution to allow more progressive generations to alter the status quo. Alternatively, I could believe the they were all white capitalist racists that never had any intention of extending rights beyond their clique of white Anglo land holders and think that the overall structure is good but needs serious revisions in order to make the country a more fair and democratic place. Finally, I could think the former is true and that it was a mistake to ever go beyond the myopic language that legalized slavery and gave votes only to white men. So, again, who gets to decide?
I think, Reed, that you "Constitutional Conservatism" a little too literally. It doesn't meanthat the consitution should never change, should never be re-interpreted, and never be malleable. Afterall, it was the intention of the founding fathers that the consitution be a living breathing document that is subject to review every so often. (I believe the original idea was every 20 years or so?)
The fact of the matter is that when the Constitution was written, this was a very different place, with very different values, and a very different culture. Therefore, it's only natural to assume that as the country grows and matures that the consitution should do the same to. That isn't in question.
But, the idea of constitutional conservatism is that the consitution, while beholden to certain elements of shange out of necessity, embodies certain values that should be universal and immutable, values that can't just be chucked because they are occasionally inconvenient, as they form the foundation for a liberal, free society.
The 5th amendment is one of them. But, I believe the consitution does allow us enough breathing room to have our cake and eat it too, so long as we don't violate those core, immutable principles.
But, the role of a judge is to rule according to the current state of the law, unless said law is found to be unconstitutional.
The idea is that if the law results in rulings that are seen by the majority as obviously flawed, then the laws need to be re-written by our elected legislators.
Really, I don't think constitutional conservatism amounts to anything more than that. It's just a natural repulsion to the idea that a person or handful of persons who were appointed to their post, not elected, to make broad, sweeping changes to the laws written by our elected legislators, even to the point where they can cause a fundamental shift in political paradigms.
Roe vs. Wade is probably the best example of this. I don't protest that decision because of the issue of abortion... While I personally find certain aspects of it repugnant, I certainly don't think that all forms of abortion should be illegal.
My objection to that decision is rooted in the fact that it took power away from states and communities to make moral decisions for themselves. I understand your argument regarding Jim Crow laws, and the sentiment is all well and good. But if you object to the idea of states and communities making moral and ethical decisions for themselves, than why even have them at all? Why don't we just all report to our single, federal overlord to collect our taxes, write our laws, and make our moral and ethical decisions for us?
Well, in some ways I do object to states getting to make decisions that are out of line with the Federal government. Part of having one nation state is having some form of collective identity. Not to say that there can't be variation depending on region or local culture or what not, but there are, as you say, immutable principles that define the nation, and I don't think states should get to ignore those or set up sub-identities just because, for example, states like Alabama and South Carolina had a culture of institutionalized racism. Nor would I want Utah to be able claim it was a Mormon state and that its laws reflected the values of its people.
Fortunately, the Constitution has prevented this from happening. So where do states get to make those "moral" decisions? I had this same debate with some libertarian friends in Vermont who thought more power should be divested to states and local governments since they know better the will of the people and how to serve them. The problem is that you end up with significant variations in morals and beliefs and how the law addresses them. I think abortion is a national issue and it is not a good idea to let some states choose to outlaw it and others not. I would see this as the same for religion. For instance, according to the Constitution, the federal govt can't back a particular religion, but there is nothing to say states can't. So if S.C. declared itself a Christian state and set up a legal system based on Biblical law what would stop them. Traditionally, the federal courts have intervened in this case and stopped such practices--a good decision I think. But to many, including many constitutional conservatives, this is federal overstretch. If the people of SC are 95% Christian and want to be a Christian state by God let them. That idea bother me a lot (and i think we would see lots more of it under a Huckster regime). But it is consistent with Constitutional conservatives views (as I understand them). The question still is who gets to decide and how far they can go? Sadly, local politics is often a playground of ill-informed, narrow minded populists. (Mind you this is not always the case and I am not saying that local/state policy makers can't make good decisions). Jim Crow is again a case in point. The federal government finally stepped in, and regardless of states' rights to regulate issues of voting and equitable treatment, the federal government interceded to help ensure some nominal national level of individual rights. This might have been backed by interpretations of the Constitution, but really it was a struggle over the collective identity and morals of the nation--that is, were all people free and equal or not? The states lost that battle. The new battlefields are abortion and religion.
As for why have states? Nearly all countries, federations, republics, constitutional monarchies have sub-divisions or organizational within the country. Some delegation is good since the further removed the less efficient and responsive the government becomes. It is administrative more than anything. But I don't really see why states should not be secondary to the federal government. Plus, I feel no more comfortable (and maybe less so) in having a few politicians in Washington making laws that apply across the whole nation than I do having a bunch of good ol' boys in Raleigh or Columbia or Montgomery making laws that apply to me because I live in that state. Which system is really more responsive? Probably the states, as long as you are in the majority or part of the club. Which is more fair? I would go with the Fed on that one (but maybe only by a small, small margin :/.
The funny thing is, that on many of the finer points, we don't actually disgree too vastly... It's more or less in the "sum of the parts" that we find our differences. I find that I am more likely to trust the State Government (only slightly :P) moreso than the federal, precisely because issues of local interest are higher in priority on the state level.
I don't want States to have carte blanche to do whatever they want, particularly if what they want to do contradicts federal law and/or the constitution. However, I want states to be able to implement their own laws in accordance with the customs and beliefs of its people.
If a State wants to punish rape more harshly than its neighbor, but possion of pot less so (or not at all), then I believe they should have the right to do so.
My objection to the broad reach of Row vs. Wade is precisely because it's such a strongly contested issue on both sides.... one where both sides are even speaking a different language than the other. Liberals believe that a woman has the right to do with her body as she pleases, and may choose whether or not she becomes a mother... Conservatives argue that when pregnancy is involved, it's not just her body she's making a decision for anymore.
Half the country finds in favor of the mother, the other half in favor of the child. And Roe vs. Wade stripped the right of the state and the community to make their own decision over what is a subjective question that doesn't have a single right answer.... Instead, the judiciary made that decision for everyone every where in the United States. And I feel that in this particular case, that is fundamentally wrong.
Jim Crow laws were instituted specifically to limit the rights of other human beings... therefore, were absolutely in the wrong, and the federal government was right to step in and forcibly institute change.
But in the case of abortion, one side is trying to protect the rights of the mother, and the other the rights of the unborn child. Neither is wrong to do so. But one side enforced their beliefs, and the other is told to suck it up and fuck off.
Besides: I just don't WANT a homogenous nation state. I want to know that we have states with unique characters and values like California, Texas, Georgia, New York, and New Hampshire. (New Jersey, not so much) I think that's exactly what makes the US's national character so interesting.
I don't know many people who want states to be nation states on their own, beholden to no one. But I don't want my state government to be little more than an administration node in a federal leviathon, either.
I would say, "oh well, each to his own", but that apparently doesn't sit well with some. :)
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