Data Strategy

January 17, 2008

Encryption versus the Fifth Amendment

Filed under: People and Data — chucklam @ 3:54 am

As usual, Nick Carr has spotted some interesting news:

As the Washington Post reports today, the encryption conflict is now coming to a head. [Sebastien Boucher], accused of storing child pornography on his computer, has refused to provide police with the password required to unlock the encrypted files on his hard drive. He claims that disclosing the password would violate his Fifth Amendment right to avoid self-incrimination. A judge backed his claim, and the government is now appealing that ruling in the federal courts.

The judge’s reasoning, as cited in the original Washington Post article, is quite fascinating:

In his ruling, [Judge] 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 .

The judge also said that “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.”

I’ve heard of many dilemmas, but trilemma… that’s a new one for me.

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