Daily Archives: January 25, 2008

Logging in to the 5th

421828965_16daa0da54.jpgThe 5th Amendment’s protection against self-incrimination certainly has been a hot topic in the blawgosphere. I’m going to bring it into the tech age, with this story about a man invoking the privilege and not giving up the password to his super-encrypted hard drive.

Boucher was crossing the border when he was pulled over for a secondary inspection. Of the 34,000 or so image files on Boucher’s computer, several appeared to have names suggesting explicit child pornography, so the agents wanted to see them. However, they were encrypted so they needed him to provide the password. They were stored on a partition of his hard drive, mysteriously called “Drive Z”. He entered the password himself and they saw some child porn, so he was duly arrested.

As per norm, they took the computer and created a mirror image of the drive. Unfortunately, they didn’t have the password to the encrypted files on “Drive Z” and now, a year later, they still don’t. Using all their high-tech skills, they haven’t been able to crack through the PGP encryption and now want him to fork over the password.

He invoked the 5th. On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling him 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 judge, one of the very few that have upheld an invocation of the 5th, used an analogy from Supreme Court precedent.

It is one thing to require a defendant to surrender a key to a safe and another to make him disclose its combination.

The government can make you provide samples of your blood and handwriting and the sound of your voice. It can make you put on a shirt or stand in a lineup. But it cannot make you testify about facts or beliefs that may incriminate you.

It seems that legal scholars agree that there is a privilege in the password, but his using it at the border waived it.

“In a normal case,” [Orin] Kerr [who posts at Volokh] said in an interview, “there would be a privilege.” But given what Boucher had already done at the border, he said, making him provide the password again would probably not violate the Fifth Amendment.

My question is: Why is it a waiver for him to use the password once? I don’t know enough about 5th Amendment waiver jurisprudence, but when a witness invokes the privilege, it is usually done on a question by question basis. What if Boucher here is telling the truth that these may have been inadvertently downloaded and “went along” to prove to the agents that he was “innocent”? Then when he discovered that he was looking guilty, he didn’t want to “help” them anymore.

Certainly, Miranda rights can be asserted even after a waiver. So why not this?


Image by thelastminute. License info here.

Parole ban may be lifted soon

Now that stricter home invasion laws have been enacted, Governor Rell indicated at a press conference today that she will be considering whether to lift the parole ban this weekend. This will certainly be good news for a correctional system that is barely hanging on by a thread and is bursting at the seams (hah! TWO in a row!).

At a ceremony Friday, in which Mrs. Rell signed into law the new criminal justice reforms passed earlier this week by the legislature, she said she needs to make sure a few more things are in place before she lifts the ban. However, “I hope to have that decision over the weekend,” she said.

Cathy Osten, a lieutenant and president of CSEA/SEIU Local 2001’s correctional supervisors, said Friday morning that all the state’s correctional facilities are overcrowded. She said she’s been with the department more than 18 years and it’s been overcrowded almost half of that time. She said the current population increase is a result of the governor’s ban on parole.

Ironically, her new bill might get its first test on the first day! The wife of the Assistant Deputy House Speaker walked in on two robbers in her home today (Morons). Will it matter what time she actually signed the bill into law?

Gov. Rell also indicated that she would try and raise a three-strikes bill again, because the people of CT want it or some such nonsense. Except that the most recent QU poll showed that they don’t. I guess she’s the American Idol Governor only when it suits her ideas.