Criminal Defendant Ordered to Decrypt Own Hard Drive

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If Sebastien Boucher thought that encryping the data on his hard drive would protect him from prying eyes, he may have been right. But if the Derry, New Hampshire resident, who is originally from Canada, thought that it would protect his 5th Amendment right against self incrimination, he may have another think coming.

Last week, U.S. District Judge William Sessions (in Vermont) over-ruled a lower court ruling that Sebastien Boucher could not be forced to decrypt his hard drive, or provide the password to do so, because it would be a violation of his right to not incriminate himself, as guaranteed under the 5th Amendment.

At issue is the prosecution’s contention – based on solid evidence – that there is child pornography on Boucher’s hard drive. It all started when Sebastien Boucher was coming back into the country from Canada, and a customs agent noticed some child porn images on his laptop. At that time Boucher waived his Miranda rights to an attorney, and admitted that yes, there were child porn images on his laptop. The customs agent stated that they were able to view his “Z” hard drive partition, which contained “thousands of images of adult pornography and animation depicting adult and child pornography.”

[Note that it is likely that such a defendant may have believed that having animation involving children was not illegal – which would explain why he readily admitted it and waived his Miranda rights to a lawyer – but, in fact, anything that depicts a minor in a sexual act – even fictitious, cartoon-drawn minors, may be illegal.]

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However, after the files were viewed by the customs agent, the laptop was powered down, and nine days later, when authorities tried to access the data, they discovered that, upon turning the laptop on, they needed a password to access the data. The trial court ruled that he could not be compelled to decrypt it, because it would violate his 5th Amendment rights.

However, last week’s ruling directly overturns that decision.

Said Judge Sessions in his ruling, “Boucher is directed to provide an unencrypted version of the Z drive viewed by the ICE agent.” The Judge added that “Boucher’s act of producing an unencrypted version of the Z drive likewise is not necessary to authenticate it. He has already admitted to possession of the computer, and provided the government with access to the Z drive. The government has submitted that it can link Boucher with the files on his computer without making use of his production of an unencrypted version of the Z drive, and that it will not use his act of production as evidence of authentication.”

All this is legalese for “we already know he has it – and have other ways of proving it – so he’s not incriminating himself by being forced to give up his password.”

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Jim Budreau, Boucher’s attorney, says that an appea is already underway.

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