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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.

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?

Are you saying that it isn’t a self-incrimination problem at all?

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.

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.

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