December 15th, 2007

Text of article:

A federal judge in Vermont has ruled that prosecutors can’t force a criminal defendant accused of having illegal images on his hard drive to divulge his PGP (Pretty Good Privacy) passphrase.

U.S. Magistrate Judge Jerome Niedermeier ruled that a man charged with transporting child pornography on his laptop across the Canadian border has a Fifth Amendment right not to turn over the passphrase to prosecutors. The Fifth Amendment protects the right to avoid self-incrimination.

Niedermeier tossed out a grand jury’s subpoena that directed Sebastien Boucher to provide “any passwords” used with the Alienware laptop. “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him,” the judge wrote in an order dated November 29 that went unnoticed until this week. “Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

Link to court opinion:

Orin Kerr’s this-ruling-is-wrong post:

Link to Michael Froomkin’s old law review article touching on this:

The most basic principles of a free country make RIPA bad law.

This is another example of why america was such a great country and why its Founding Fathers are so rightly revered; its constitution was so perfectly written that its provisions work on technologies and scenarios two hundred and thirty years after it was devised.

I can imagine a scenario where an american with a laptop containing a PGP encrypted volume ‘invokes The 5th’ somewhere in the world and the out of jurisdiction court accepting this – they accept american jurisdiction for everything else, like carting people off to torture prisons, so why not the Fifth Amendment?

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