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.

11 thoughts on “Logging in to the 5th

  1. SPO

    I am just a dumb transactional guy, so what do I know. My first reaction is that this is analogous to a key, so the guy loses. However, let’s take this hypo, say someone has a ledger in a code, can the government force the guy to disclose the code? I don’t think so. Under Miranda, don’t you have the right “to remain silent”? As for the, you told us once, you have to tell us again, I think that’s all wet. If you confess to a crime to the cops, do you waive your right to assert the Fifth when asked to repeat the confession on the stand? I don’t see how you can ever waive your right to assert your Fifth Amendment rights in the future. The analysis under the Fifth seems to be whether you are being forced to make a statement that incriminates yourself–if it does, can the government really argue that because you did it before, you lose the Constitutional right? Where is that exception in the Fifth Amendment?

    Ok, I am rambling now.

  2. Miranda

    Well, I’m hardly a 5th Amendment scholar myself, but I’m not seeing a waiver at all here. What am I missing?? Isn’t waiver only applied when testifying?

    First of all, he didn’t actually say anything the first time, he just entered the password himself – and that’s an interesting fact pattern in terms of the privilege. But in any event, even if he had told the border officials, hey, I don’t want you to look on this computer because there’s kiddie porn on it, the gov’t can’t compel him to say that again during questioning or compel him to testify and say that. Why is this different because it involves a password?? I don’t get it.

  3. Scott Greenfield

    The difference between this a Miranda is that the password is not the evidence, but access to a computer file that contains physical evidence. There is no privilege to withold physical evidence of a crime.

    The only issue was the “act of production” privilege, that by Boucher’s possessing the password, it shows that he had the ability to access the content of the illegal file.

    So the password itself, admitted into evidence for example, is meaningless and not inculpatory in itself. It is the computer file the is evidence of the crime. The fact that Boucher has already opened the file at the border of his own volition may constitute a waiver of the “act of production” privilege, which is the only waiver at stake. This isn’t a Miranda issue at all.

  4. Miranda

    Scott – do you have any examples or case law establishing waiver in any context analogous to this one? I could be having a brain cramp, but I’m still not seeing it…

    I understand that a suspect can’t invoke the 5th to avoid producing physical evidence, but the issue there isn’t waiver, it’s that the evidence is non-testimonial, or non-verbal. Assuming that this password is akin to the combination to a safe and not the key to safe, which I think (?) we all agree on, then Mr. Boucher CAN invoke the 5th rather than give the police the password. In my view, the safe example delineates the distinction between providing information that has a tendency to incriminate yourself and providing a tangible object that may be tested or otherwise used to incriminate you. It is the information that is protected. Police may be able to obtain a search warrant for DNA or a key, or what have you, but they cannot make the suspect provide information about those objects.

    So, again, assuming that providing the password (either by typing it in himself or by telling authorities what the password is) is protected by the privilege, why must he now disclose it?? If it’s protected by the privilege, I don’t see how there is any such thing as a “waiver” unless we’re talking about actual testimony. I’ve never read a case where it has been held that the defendant waived the privilege by giving incrimination information and then refusing to give it again – although that certainly doesn’t mean they’re not out there. Can you direct me to any?

  5. Scott Greenfield


    I’m not waying it is a waiver, but that this was Orin Kerr’s argument, having once proven that he could produce the password, he argued that Boucher’s invocation of privilege the second time around is waived since his ability to produce has already been established and it was now only a problem of accessing physical evidence, not proving he had the ability to access it.

    I disagree with Orin, but was trying to make the issue clear. It’s not an absurd argument, particularly since this case will ultimately end up in the 2d Circuit, and I expect the Circuit will try to find a way around this decision.

  6. Miranda

    Oh, okay. Sorry Scott – I misunderstood your position as advocating for this novel waiver theory, instead of merely reporting what the positions and the decision were. I won’t ask you to defend the waiver position further, then. 🙂


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