Porn, passwords and rights in the Internet age

[dr. what]

And there's even Fifth Amendment issues involved....

Peering into Sebastien Boucher's laptop computer, a U.S. border agent scrolled over a list of file names that suggested depictions of horrific abuse involving children as young as two years old.

When the agent asked if the laptop contained child pornography, Mr. Boucher's hands shook and the carotid artery in his neck throbbed, according to a court affidavit. He said he didn't know.

A subsequent inspection of Mr. Boucher's computer by the Department of Homeland Security allegedly uncovered videos showing pre-teen girls engaged in sex acts. He was charged with transporting child pornography.

But today, the U.S. justice department's case against Mr. Boucher is mired in a dispute over the scope of the U.S. constitution's Fifth Amendment and its power to protect suspects against self-incrimination in the information age.

And it has also had the strange effect of making a Canadian -- Mr. Boucher is a Canadian citizen who lives in Vermont -- a test case for one of the most fundamental rights in the U.S. constitution.

Also watching closely are Internet law experts. The sanctity of passwords has far-reaching implications for computer users who might encrypt sensitive personal information.

Mr. Boucher and his father were returning from Quebec to their home in Derry, Vermont, when they were stopped at a border crossing south of Sherbrooke and pulled over for secondary inspection. The U.S. border guard noticed the laptop in the back seat of their car, according to an affidavit filed in Vermont District Court.

On the laptop hard-drive were approximately 34,000 images, the affidavit said, including one titled "Two year old being raped during diaper change."

The border guard asked Mr. Boucher if his computer contained child pornography. He said he didn't know, because he hadn't had a chance to check his temporary Internet files -- the images that are stored by a Web browser automatically when surfing. Throughout the questioning, Mr. Boucher showed signs of nervousness, the affidavit said.

The border guard called in Agent Mark Curtis from the Department of Homeland Security. He examined the computer and, he said, found several images of adult pornography and animated child porn. Mr. Boucher was read his Miranda rights.

As Mr. Boucher watched, Agent Curtis says he examined more files, including "Pre-teen bondage," "11 year old lesbians," and at least one other video allegedly depicting sex acts involving what appeared to be pre-teen girls.

Mr. Boucher told the agent that he downloads pornographic images from Internet newsgroups and sometimes unknowingly downloads files with child pornography, but deletes them, the affidavit said.

Agent Curtis the seized the computer, turned if off, and Mr. Boucher was arrested.

Two weeks later, however, investigators tried to make a copy of the hard-drive and discovered they were unable to access the same files that Agent Curtis had seen. The disk drive had been encrypted using a widely-used software application called Pretty Good Privacy and, without Mr. Curtis's password, could not be opened.

It was not clear if Mr. Boucher had entered his password during the first inspection, or whether the drive had been unlocked previously.

Computer specialists working for prosecutors said there is no "back door" that law enforcement can use to unlock the files. A program that repeatedly guesses the password could be used, but it could take years before it cracked Mr. Boucher's code.

Without the password, the potentially incriminating files on his disk drive could not be viewed and key evidence against Mr. Boucher was inaccessible. To open it up, the grand jury issued a subpoena to compel Mr. Boucher to provide the password.

In response, Mr. Boucher's lawyers filed a motion contending that forcing him to give up his password would violate his Fifth Amendment right against self-incrimination.

Several U.S. courts have upheld the right for customs agents to search the contents of a computer, agreeing that it is no different than searching the baggage a traveller carries. Suspects can legally be compelled to give DNA samples.

In an evidentiary hearing last year, the government conceded that forcing Mr. Boucher to verbally disclose the password before the grand jury would be "testimonial" and prohibited by the Fifth Amendment. He could merely "take the Fifth" when asked for the password.

But prosecutors had another idea: Mr. Boucher could be ordered to enter the password on his computer, without anyone seeing it, and unlock the disk without incriminating himself. The fact that he knew the password would not be used against him, they promised.

Judge Jerome Niedermeier of the Vermont District Court didn't buy it. Even entering the password himself would communicate facts that could be self-incriminating, Judge Niedermeier wrote in a ruling last month.

"Boucher would still be implicitly indicating that he knows the password and has access to the files," the judge concluded. "The contents of Boucher's mind would still be on display."

The motion to quash the order was granted.

Last week, the government filed an appeal of Judge Niedermeier's decision, and it's a good bet that whoever loses the next round will also appeal.

The case has angered some observers who accuse the Vermont court of letting a person alleged of possessing child pornography go free.

The case has also debunked a common Internet myth: that investigators can crack anyone's password with powerful computers. It has shown that encryption software such as Pretty Good Privacy is effective at keeping sensitive information from police.

Mr. Boucher is currently released under the condition he does not leave Vermont or New Hampshire. Reached at home, he declined to comment. His lawyers and the attorney prosecuting the case also declined to comment.

[Darth Wong]

Giving a password to unlock protected files should not be treated any differently than forcing someone to hand over keys to a safe when you have a search warrant for that safe. This is a classic example of looking for loopholes to get the client off.

No doubt that hard drive does contain child porn, and I'm betting it's not just in the web browser's cache.

[Zablorg]

This is absolutely disgusting. I would do very unpleasant things to the person who enjoys the idea of toddler rape. So very unpleasant things.

I think they will find child porn in there too, although if he was smart he would delete his browser history. Or does it still save it deep in the bowels of the computer?

[Darth Wong]

This is absolutely disgusting. I would do very unpleasant things to the person who enjoys the idea of toddler rape. So very unpleasant things.

I think they will find child porn in there too, although if he was smart he would delete his browser history. Or does it still save it deep in the bowels of the computer?

He was smart enough to encrypt the data, refuse to give out the password, and hire a lawyer to look for legal loopholes.

[Alyrium Denryle]

Honestly I am not certain of the initial search. I dont think they had the authority to look through the contents of the hard drive, so while the 5th amendment argument would not hold up, that probably would not.

If the guy has child porn and has it knowingly and looks at it, he is a horrible horrible person who needs to be beaten to a bloody pulp (though if it was animated child porn... look on the bright side, it was not live action child porn *shiver*) however that has has no bearing on the legality of the search.

We have these rules of evidence and restrictions on searches for a damn good reason, and it has nothing to do with contests of rights.

[Darth Wong]

Honestly I am not certain of the initial search. I dont think they had the authority to look through the contents of the hard drive, so while the 5th amendment argument would not hold up, that probably would not.

The initial search was conducted by DHS at a border crossing. Customs guards basically treat you as guilty until proven innocent, and I am not aware of any legal challenges to stop this practice.

[Alyrium Denryle]

Honestly I am not certain of the initial search. I dont think they had the authority to look through the contents of the hard drive, so while the 5th amendment argument would not hold up, that probably would not.

The initial search was conducted by DHS at a border crossing. Customs guards basically treat you as guilty until proven innocent, and I am not aware of any legal challenges to stop this practice.

There should be. They are still bound by the constitution last I checked... At least when dealing with non-brown people....

[Setesh]

I think they will find child porn in there too, although if he was smart he would delete his browser history. Or does it still save it deep in the bowels of the computer?

Depends greatly on what he's been using to download/watch it. Some keep records of what you download so you don't get to many repeats. And some programs send a 'most watched' list to a server every month or so. In this case it would be mere icing on the cake. (34000 Images!!!!!, great googly moogly) He's going down one way or another.

Webbrowser cache alone is difficult to convict on unless its a large amount. Christ if you use limewire or kazaa to look for porn your going to get some child porn by accident because of the large number of asshats who rename shit something completely different. I deleted limewire plus over getting burned by this shit once too often.

[MKSheppard]

This is absolutely disgusting. I would do very unpleasant things to the person who enjoys the idea of toddler rape. So very unpleasant things.

Oh look, another intardnet tuff guy.

[Zablorg]

This is absolutely disgusting. I would do very unpleasant things to the person who enjoys the idea of toddler rape. So very unpleasant things.

Oh look, another intardnet tuff guy.

Right, because it's so very tough to want to hurt the kiddy porn man. Fuck off.

[Einhander Sn0m4n]

While I strongly disagree with how the evidence was first brought to light (the DHS asshats doing what amounts to illegal search and seizure with no probable cause), I do believe the defendant is guilty of knowingly possessing child porn due to what they did find during the illegal search at the border.

I have a reason to suspect his case hasn't a leg to stand on if he pushes the password angle, but he can quite possibly beat it by exercising his Fifth Amendment rights pertaining to the DHS agents initiating the search in the first place. This forces the government into the uncomfortable position of declaring the Constitution null and void regarding DHS, which I suspect is the intent of the agency all along.

This is absolutely disgusting. I would do very unpleasant things to the person who enjoys the idea of toddler rape. So very unpleasant things.

Oh look, another intardnet tuff guy.

Seconded. Ever heard of due process and right to security against warrantless search and seizure without Probable Cause you stupid fucking noob ([not you Shep] and for that matter, you DHS goons)?

[Alyrium Denryle]

I have a reason to suspect his case hasn't a leg to stand on if he pushes the password angle, but he can quite possibly beat it by exercising his Fifth Amendment rights pertaining to the DHS agents initiating the search in the first place. This forces the government into the uncomfortable position of declaring the Constitution null and void regarding DHS, which I suspect is the intent of the agency all along.

Correction: They violated his 4th, and 14th amendment rights

[Mr Bean]

On the one hand, by all indications this man has child pornography, he's a sick bastard.

On the other hand legally, lets use the safe analogy.
Lets say I have an unbreakable safe, built that you can't open it without destroying the contents. The password is a un-guessable, but you could crack the safe in ten years of dial turning. (Pretty close to what we have here)

I know that in that safe is documents incriminating me of some terrible crime. And you have some circumstantial evidence to the effect you KNOW that you can prove me guilty of said terrible crime, lets say you saw the documents once when the safe was open earlier.

Now if I refuse to tell you the combo of that safe what can you charge me with? obstruction of justice for sure, but what else? What else could they nail him with if he refuses even under court order to give up his combo?

Wong this is different from a safe with keys situation, the only thing he can be asked to give up is knowledge, it's not a physical object. If you threw the keys to the safe in the sea that's legally different from simply refusing to give up information.

Right to remain silent is still a right last I checked. You can not be forced to talk so to speak, you can be made to give up something like a set of safe keys, but to tell the combo? No, legally all you can hit them with is obstruction of justice. At most they can toss him in jail for five years or fine him a good chunk of money but not more. And if they try and throw the book at him he will get off on appeal due to biased calls.

[Einhander Sn0m4n]

I have a reason to suspect his case hasn't a leg to stand on if he pushes the password angle, but he can quite possibly beat it by exercising his Fifth Amendment rights pertaining to the DHS agents initiating the search in the first place. This forces the government into the uncomfortable position of declaring the Constitution null and void regarding DHS, which I suspect is the intent of the agency all along.

Correction: They violated his 4th, and 14th amendment rights

And this is why I'm not a lawyer. I still think the case as-is should be dismissed and Constitutionally-sound means of evidence-gathering be used to nail him.

[Xon]

He was smart enough to encrypt the data, refuse to give out the password, and hire a lawyer to look for legal loopholes.

Anybody who doesnt use full(or near) drive encryption on laptops and uses it for more than playing built in games when travelling is a fucking idiot. And no shit if you where vaguely accused of any child related crime you'ld look for every single loophole you could.

Frankly, piracy can be dicy due to way to many fucktards renaming shit. And never mind 4chan shit or the like.

[Kamakazie Sith]

I have a reason to suspect his case hasn't a leg to stand on if he pushes the password angle, but he can quite possibly beat it by exercising his Fifth Amendment rights pertaining to the DHS agents initiating the search in the first place. This forces the government into the uncomfortable position of declaring the Constitution null and void regarding DHS, which I suspect is the intent of the agency all along.

Correction: They violated his 4th, and 14th amendment rights

And this is why I'm not a lawyer. I still think the case as-is should be dismissed and Constitutionally-sound means of evidence-gathering be used to nail him.

If it's dismissed then this guy will walk, and there will be no further investigation. They'd lose the laptop, and anything else used to arrest him, because it would fall under fruit of the poisonous tree.

That being said this story doesn't tell us why they searched his computer. It's like the story just jumped ahead to the search, and if that's exactly how that happened then the border guards fucked up and this guy will walk away free.

The fifth amendment thing is nonsense though. The fifth amendment protects you from self-incrimination, but it does not give you the right to conceal physical evidence. If they have probable cause, or a search warrant to check the hard drive then it is legal under the fourth amendment.

[Kamakazie Sith]

Right to remain silent is still a right last I checked. You can not be forced to talk so to speak, you can be made to give up something like a set of safe keys, but to tell the combo? No, legally all you can hit them with is obstruction of justice. At most they can toss him in jail for five years or fine him a good chunk of money but not more. And if they try and throw the book at him he will get off on appeal due to biased calls.

You can't be forced to answer questions that could incriminate you. You aren't allowed to conceal evidence. The password won't incriminate this man, and the police have a legal right to the physical evidence on the hard drive.

Assuming this entire search was based upon probable cause.

[Glocksman]

I have a reason to suspect his case hasn't a leg to stand on if he pushes the password angle, but he can quite possibly beat it by exercising his Fifth Amendment rights pertaining to the DHS agents initiating the search in the first place. This forces the government into the uncomfortable position of declaring the Constitution null and void regarding DHS, which I suspect is the intent of the agency all along.

Correction: They violated his 4th, and 14th amendment rights

And this is why I'm not a lawyer. I still think the case as-is should be dismissed and Constitutionally-sound means of evidence-gathering be used to nail him.

God help me, as I normally would agree with you.
However, IIRC the courts see searches conducted as you enter the USA as being exempt from constitutional restraints.
Frankly I have a hard time disagreeing with the premise that the US government doesn't have the right to conduct warrantless searches of those attempting to enter the USA.

Once they're legally admitted into the country is another matter of course.

[Kamakazie Sith]

Honestly I am not certain of the initial search. I dont think they had the authority to look through the contents of the hard drive, so while the 5th amendment argument would not hold up, that probably would not.

The initial search was conducted by DHS at a border crossing. Customs guards basically treat you as guilty until proven innocent, and I am not aware of any legal challenges to stop this practice.

There should be. They are still bound by the constitution last I checked... At least when dealing with non-brown people....

This is most likely a consent search as a condition to enter the country, so they are fullfilling the fourth amendment requirements. Just think of an international airport.

If you want to fly you need to give consent for your baggage to be searched if asked. If you don't want your baggage to be searched then you need to turn around and leave.

[Alyrium Denryle]

The initial search was conducted by DHS at a border crossing. Customs guards basically treat you as guilty until proven innocent, and I am not aware of any legal challenges to stop this practice.

There should be. They are still bound by the constitution last I checked... At least when dealing with non-brown people....

This is most likely a consent search as a condition to enter the country, so they are fullfilling the fourth amendment requirements. Just think of an international airport.

If you want to fly you need to give consent for your baggage to be searched if asked. If you don't want your baggage to be searched then you need to turn around and leave.

That is just it. They can search the computer for dangerous materials. As in, they can use a chemical sniffer to make sure my laptop is not actually a bomb. But what they do NOT have a right to do is search the hard drive. This also answers Glocksman above.

Searching someone as they enter a country for invasive species, drugs, things of that nature is one thing. That is a reasonable search. But looking at the contents of someone's hard drive is another, there is no actual basis by which to perform that search.

[Glocksman]

But wouldn't the fact that child porn is illegal permit the Feds to search everyone entering the country for it, much as it's currently legal for them to search you for drugs or other physical contraband?

[Alyrium Denryle]

But wouldn't the fact that child porn is illegal permit the Feds to search everyone entering the country for it, much as it's currently legal for them to search you for drugs or other physical contraband?

Not sure. One search makes sense intuitively. A police officer can walk up to a judge and say "we get a lot of drugs through here" and the search is reasonable considering precedent and drug traffic.

Going on a fishing expedition inside someones hard drive is a bit different. Looking for child porn does not make any sense considering the relatively low volume of child porn that they can expect to waltz though the borders via... you know... physical means.

[Glocksman]

My understanding (and I could be wrong) is that constitutional restrictions on searches don't apply when one is entering the country.
That said, if the original motivation to search the hard drive thoroughly is the presence of a file named (for example) 'rape of 10 year old.jpg' that was discovered when the perp was trying to enter the country, the mere file name would convince a Judge probable cause existed to issue a search warrant.

Though that whole line of discussion is immaterial if I'm correct in assuming that you have no constitutional protections IRT search and seizure when you're attempting to enter the country.

[Zablorg]

This is absolutely disgusting. I would do very unpleasant things to the person who enjoys the idea of toddler rape. So very unpleasant things.

Oh look, another intardnet tuff guy.

Seconded. Ever heard of due process and right to security against warrantless search and seizure without Probable Cause you stupid fucking noob ([not you Shep] and for that matter, you DHS goons)?

Why would he name his goddamn files things that relate to pedophelia if not that they contain child porn?

I really don't see how it should be any different to access all of someones computer files than it is to demand that they have full access to his briefcase.

[Superboy]

This might be a stupid question since I'm not at all familiar with this kind of law, but what would happen if he just claimed that he forgot the password? Wouldn't they need to prove that he was lying in order to charge him with something like obstruction of justice?