Porn, passwords and rights in the Internet age

[Flagg]

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?

Pretty much. You can never go wrong with "I don't recall". They can't prove otherwise unless you're an idiot.

The 4th Amendment is severely relaxed when it comes to border and airport security, but the 5th Amendment is not. He is not required to incriminate himself.

However, the testimony of the border guard who witnessed the actual child pornography (as opposed to the animated shit, which is legal) should be admissible. I'm guessing that's not enough to get a conviction with, though.

[Flagg]

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?

Sick sense of humor? Name of a punk band?

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.

Umm, because the only way for them to access the files in any reasonable amount of time is to get the password. And forcing this douchebag to divulge it violates his 5th Amendment right against self-incrimination. You can always use a knife or saw to get into a briefcase. Stupid.

[Zablorg]

5th ammendment be damned! You're right though, in any case. I will be very interested to see how this is resolved.

[Darth Wong]

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?

Contempt of court, I suppose.

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.

Wrong. He's being asked to give up evidence which the court has a legal right to. It doesn't matter how he gives it up. They don't even give a shit if he tells them the password, as long as he unlocks the files for them. Painting this as a "right to remain silent" issue is nothing more than bullshit legal maneuvering.

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.

He's not just being "accused". The police have very good evidence against him already- namely, the filenames. When some guy has videos on his fucking hard drive with names like "Two year old raped during diaper change", it doesn't take a genius to know what's probably contained in those files. All they're demanding is that the files be decrypted so they can confirm what anybody with a brain already knows.

[Zablorg]

What is the typical sentence for being in possesion of child porn?

[Flagg]

Wrong. He's being asked to give up evidence which the court has a legal right to. It doesn't matter how he gives it up. They don't even give a shit if he tells them the password, as long as he unlocks the files for them. Painting this as a "right to remain silent" issue is nothing more than bullshit legal maneuvering.

Oh, it's totally bullshit legal maneuvering, but much like child porn, it's probably going to get this guy off. The police already have the actual evidence they simply need the password to access it (or wait until their program randomly figures it out), but they can't force this dickbag to divulge his password because it would then be self incrimination.

It's all one big douchebag lawyer wet dream.

[Zablorg]

I wonder if legal loopholes like this get sealed after the incident is over somehow. Otherwise more such people might try the same tactic. Assuming he gets off, of course.

[Keevan_Colton]

Am I the only one that noted the word animated in there?
They say that he had adult pornography and animated images depicting child pornography...they want to send him down for possessing hentai according to the article...

Just something to consider from the given information.

[Zablorg]

No, he did have animated porn, but the testimony said there was also non-animated stuff, too.

[Keevan_Colton]

No, he did have animated porn, but the testimony said there was also non-animated stuff, too.

The point about him being read his miranda rights is pretty clear:

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.

Then there's this:

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.

Though it's unclear after it whether the video was of an animated variety since the words "one other" are used, though the US legal system for some reason considers cartoon characters capable of being underage...and it's hard to be certain since the article is so poorly subbed (they've got the agent and the defendant mixed up for half of it.)

[aerius]

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.

If by relatively low, you mean tens of thousands of pieces of illegal porn every single month going through Pearson International Airport alone, then sure. We're not talking about a couple DVDs a day getting smuggled through Customs, but hundreds to thousands every single day. Searching though people's luggage and computers for child porn & other illegal porn is perfectly justified.

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.

Yup. You don't have constitutional rights at border crossings and airport customs areas since technically, you're not in the country yet. The Customs folks can search through all your possessions and computer files and it's all perfectly legal. For instance, if I saw some guy with a molestache and trenchcoat I can send him into secondary for looking like a stereotypical pedophile, and they can question & search him until they're satisfied with the answers they're getting.

[Alyrium Denryle]

If by relatively low, you mean tens of thousands of pieces of illegal porn every single month going through Pearson International Airport alone, then sure. We're not talking about a couple DVDs a day getting smuggled through Customs, but hundreds to thousands every single day. Searching though people's luggage and computers for child porn & other illegal porn is perfectly justified.

I stand corrected

Yup. You don't have constitutional rights at border crossings and airport customs areas since technically, you're not in the country yet. The Customs folks can search through all your possessions and computer files and it's all perfectly legal. For instance, if I saw some guy with a molestache and trenchcoat I can send him into secondary for looking like a stereotypical pedophile, and they can question & search him until they're satisfied with the answers they're

Question: Do we then have jurisdiction to arrest them and charge them under our legal system? If they are not, for example, technically in the country yet then at least if we were being consistent the worst we could do is refuse entry and let the canadians deal with them. Just a question because IIRC you do or have worked in customs and would know better than I

[Kamakazie Sith]

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.

Right, but if they asked him if it was okay to search the hard drive then it would be legal.

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.

Correct. We're assuming that they took his laptop against his wishes, or had no reason to inspect it.

[Kamakazie Sith]

Umm, because the only way for them to access the files in any reasonable amount of time is to get the password. And forcing this douchebag to divulge it violates his 5th Amendment right against self-incrimination. You can always use a knife or saw to get into a briefcase. Stupid.

Oh it fucking does not. The 5th amendment does not give you the right to withhold evidence. It just gives you the right to not answer any direct questions that would incriminate you.

[Keevan_Colton]

Umm, because the only way for them to access the files in any reasonable amount of time is to get the password. And forcing this douchebag to divulge it violates his 5th Amendment right against self-incrimination. You can always use a knife or saw to get into a briefcase. Stupid.

Oh it fucking does not. The 5th amendment does not give you the right to withhold evidence. It just gives you the right to not answer any direct questions that would incriminate you.

It essentially boils down to not being obliged to aid in your own prosecution, hardly all that unreasonable really.

[Jadeite]

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.

Technology: 1
Courts: 0

Even if they get a subpoena to divulge his password, they aren't going to get it. From his PoV, its in his best interest not to tell them, because the worst they can do to him if he doesn't is far less of a punishment than what he's facing if he does.

This is how that's going to go down:
"This court order compels you to give us the password!"
"Too fucking bad."

The lawyer battle at this point is pretty much pointless, since they obviously aren't going to get the password. At this point, it'd probably be smarter to try and negotiate a plea deal (although I highly doubt that would work either).

[SCRawl]

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.

Technology: 1
Courts: 0

Even if they get a subpoena to divulge his password, they aren't going to get it. From his PoV, its in his best interest not to tell them, because the worst they can do to him if he doesn't is far less of a punishment than what he's facing if he does.

This is how that's going to go down:
"This court order compels you to give us the password!"
"Too fucking bad."

The lawyer battle at this point is pretty much pointless, since they obviously aren't going to get the password. At this point, it'd probably be smarter to try and negotiate a plea deal (although I highly doubt that would work either).

If he defies a court order, can't he be held in contempt of court? If so, how long can someone be held in this manner?

[Jadeite]

If he defies a court order, can't he be held in contempt of court? If so, how long can someone be held in this manner?

Do you think that'll matter to him? As I said, the court can do jack shit because the penalties available to them are far less than the penalties he is facing if he cooperates. A conviction for criminal contempt is far better for him than a conviction for possession of child pornography.

[Mr Bean]

As said earlier, the max they can do is throw him in jail for five years. Which he could fight, because this contempt of court charge would be appealed on 5th amendment rights. Despite the fact it reads that you can't be compelled to testify against yourself, legal precedent has it that you can't be forced to incriminate yourself either.

[SCRawl]

If he defies a court order, can't he be held in contempt of court? If so, how long can someone be held in this manner?

Do you think that'll matter to him? As I said, the court can do jack shit because the penalties available to them are far less than the penalties he is facing if he cooperates. A conviction for criminal contempt is far better for him than a conviction for possession of child pornography.

My point is that if he could be held indefinitely for contempt, wouldn't that be just as good as an actual conviction for transportation of child porn? I've heard of instances where would-be witnesses were held in custody until such time as they decided to co-operate. In such a case as this -- the witness' own prosecution -- it can wait until he decides to co-operate, at which point they could then prosecute him, even if it takes years for him to either agree to cough up the password or strike a bargain. Of course, this brings up the constitutional guarantee of a speedy trial, which is probably what his lawyers would then argue....

[SCRawl]

As said earlier, the max they can do is throw him in jail for five years. Which he could fight, because this contempt of court charge would be appealed on 5th amendment rights. Despite the fact it reads that you can't be compelled to testify against yourself, legal precedent has it that you can't be forced to incriminate yourself either.

Ah, I guess I missed that post. Carry on, then, nothing to see here.

[Flagg]

Umm, because the only way for them to access the files in any reasonable amount of time is to get the password. And forcing this douchebag to divulge it violates his 5th Amendment right against self-incrimination. You can always use a knife or saw to get into a briefcase. Stupid.

Oh it fucking does not. The 5th amendment does not give you the right to withhold evidence. It just gives you the right to not answer any direct questions that would incriminate you.

He's not withholding evidence. They have the evidence. He's just refusing to give them the password so that they can use it against him, which is his right under the 5th Amendment.

[Mr. T]

If he witholds the password and gets contempt of court and it takes about 10 years to crack the password, would they be able to come after him after 10 years with the new evidence? I don't see how it would be double jeopardy since he wouldn't quite be charged with the same crime twice.

[Kamakazie Sith]

He's not withholding evidence. They have the evidence. He's just refusing to give them the password so that they can use it against him, which is his right under the 5th Amendment.

Wrong again. Your rights under the 5th amendment protect you from answering questions where those answers could be used to convict you. Such as;

"How many pictures of children do you have on your computer?"
or
"Have you taken any of the photographs?"
NOT
"What is the password"

This is especially true when the agents have already seen the evidence. All he's doing now is concealing it. Evidence falls under the 4th amendment, and law enforcement has satisfied those requirements.

Mr. T, by then the statute of limitations would have been long passed.

[Flagg]

He's not withholding evidence. They have the evidence. He's just refusing to give them the password so that they can use it against him, which is his right under the 5th Amendment.

Wrong again. Your rights under the 5th amendment protect you from answering questions where those answers could be used to convict you. Such as;

"How many pictures of children do you have on your computer?"
or
"Have you taken any of the photographs?"
NOT
"What is the password"

This is especially true when the agents have already seen the evidence. All he's doing now is concealing it. Evidence falls under the 4th amendment, and law enforcement has satisfied those requirements.

Mr. T, by then the statute of limitations would have been long passed.

Retard, could the answer to "what is the password?" be used to convict him?