5th Amendment protection or not?

[tarna]

http://abcnews.go.com/TheLaw/wireStory?id=4257806

When Sebastien Boucher stopped at the U.S.-Canadian border, agents who inspected his laptop said they found files containing child pornography.

 

But when they tried to examine the images after his arrest, authorities were stymied by a password-protected encryption program.

 

Now Boucher is caught in a cyber-age quandary: The government wants him to give up the password, but doing so could violate his Fifth Amendment right against self-incrimination by revealing the contents of the files.

 

Experts say the case could have broad computer privacy implications for people who cross borders with computers, PDAs and other devices that are subject to inspection.

 

"It's a very, very interesting and novel question, and the courts have never really dealt with it," said Lee Tien, an attorney with the Electronic Frontier Foundation, a San Francisco-based group focused on civil liberties in the digital world.

 

For now, the law's on Boucher's side: A federal magistrate here has ruled that forcing Boucher to surrender the password would be unconstitutional.

 

The case began Dec. 17, 2006, when Boucher and his father were stopped at a Derby Line, Vt., checkpoint as they entered the U.S.

 

Boucher, a 30-year-old drywall installer in Derry, N.H., waived his Miranda rights and cooperated with agents, telling them he downloads pornography from news groups and sometimes unknowingly acquires images that contain child pornography.

 

Boucher said he deletes those images when he realizes it, according to an affidavit filed by Immigration and Customs Enforcement.

 

At the border, he helped an agent access the computer for an initial inspection, which revealed files with names such as "Two year old being raped during diaper change" and "pre teen bondage," according to the affidavit.

 

Boucher, a Canadian with U.S. residency, was accused of transporting child pornography in interstate or foreign commerce, which carries up to 20 years in prison. He is free on his own recognizance.

 

The laptop was seized, but when an investigator later tried to access a particular drive, he was thwarted by encryption software from a company called Pretty Good Privacy, or PGP.

 

More to the story if you follow the links.

 

 

Thoughts? This decision will carry further implications than immediately recognisable.

 

Forget for now the fact that he volunteered that he had 'questionable material" on his system and look to the future implications of this decision.

 

"When they came for the Jews I did nothing for I was not a Jew"...

[Humodour]

It must necessarily be the case that he is allowed to keep his passworded secrets. What are the alternatives? Torture?

[Walsingham]

Why the hell can't they crack the encryption? It can't realistically be that hard.

 

"When they came for the Jews I did nothing for I was not a Jew"...

 

Yeah, right. Here's my version:

 

"When they came for the people who liked looking at pictures of babies getting raped I said 'Hell yeah!' And threw jagged chunks of rock at the sick ****s. Because sometimes there are people who should be collected by large unpleasant men in the middle of the night."

[Brdavs]

Why the hell can't they crack the encryption? It can't realistically be that hard.

 

"When they came for the Jews I did nothing for I was not a Jew"...

 

Yeah, right. Here's my version:

 

"When they came for the people who liked looking at pictures of babies getting raped I said 'Hell yeah!' And threw jagged chunks of rock at the sick ****s. Because sometimes there are people who should be collected by large unpleasant men in the middle of the night."

 

Oh but it can be that hard. Life is not allways a Dan Brown novel... There are pritty much proven unbrakeable codes in existance, mostly in use by militaries&governments but they say this PGP is as close as it gets to those... So I guess all we have left is waterbording heh.

 

Btw I thought we were bombing ppl applying your "versions" around the world cos its too barbaric and extremist lol...

Edited February 15, 2008 by Brdavs

[Meshugger]

Why the hell can't they crack the encryption? It can't realistically be that hard.

 

"When they came for the Jews I did nothing for I was not a Jew"...

 

Yeah, right. Here's my version:

 

"When they came for the people who liked looking at pictures of babies getting raped I said 'Hell yeah!' And threw jagged chunks of rock at the sick ****s. Because sometimes there are people who should be collected by large unpleasant men in the middle of the night."

 

Oh but it can be that hard. Life is not allways a Dan Brown novel... There are pritty much proven unbrakeable codes in existance, mostly in use by militaries&governments but they say this PGP is as close as it gets to those... So I guess all we have left is waterbording heh.

 

Btw I thought we were bombing ppl applying your "versions" around the world cos its too barbaric and extremist lol...

 

No such thing. At least for commercial use.

 

Good detective work and a smart hacker will do the job.

[Brdavs]

We`re not talking about your run of the mill "passwords" you can guess or "brute force" here heh... advance algorithms and algorithms for argorithm use are the name of this game.

 

And you can be pritty sure that some1 goint to the lenghts of using such "hardware" wont be using his gfs mothers name as a reference point heh...

 

 

If it were "that easy" we wouldnt be having this topc now would we?

[Humodour]

Why the hell can't they crack the encryption? It can't realistically be that hard.

 

No, it really is.

 

Meshugger: Not really. Most encryptions require brute-forcing by super-computers to decipher. It can take years to millions of years. This isn't World War 2.

 

Look here for details: http://en.wikipedia.org/wiki/Integer_factorization

 

Basically, it's an NP problem, and NP problems can't be solved quickly by today's computers. Quantum computers may offer some advances, but then you'll very likely get quantum cryptography to nullify that.

Edited February 15, 2008 by Krezack

[Gorth]

I remember PGP in it's young days... when it was necessary to circumvent US weapons technology export restrictions in order to get the software. It was prohibited to export the files, so some clever guys printed the source code, sent the papers abroad and ocr scanned them. Rules circumvented

 

The program was awesome because of it's two keys, your private and your public key. People often had their public keys as email signature, in case somebody wanted to email you confidential information

[Pop]

Presumably a laptop can be considered the same way a filing cabinet in an office might be considered. A judge in good standing can order a search of a filing cabinet if there's sufficient reason to suspect that illegal materials are contained within it. Refusal to cooperate with said order leads to penalization. Giving up a password is no different than giving up a key. It's not really an admission of guilt, exactly, but it's pretty damning all the same. One assumes the porn didn't show up on its own. Still, the fifth amendment can't protect a person from being linked to a crime by the state via evidence obtained through legal investigation, which can extend into one's private life. It does, however, give him the opportunity to refuse to answer when they ask "is this your laptop?" or "did you download this?". It won't help him, of course. You don't need a confession to convict someone of a crime. He's still ****ed, but he's still got that right not to provide testimony that incriminates himself.

 

As for the slippery slope, we can dismiss it. Any reasonable person can conclude that the investigation of illegal child exploitation is not a necessary cause for investigation of non-illegal activities such that we should discourage child porn busts just in case the New World Order needs an excuse to monitor the type of toilet paper you buy at the supermarket. Some might consider prosecution of child pornography "thought policing", but these people are not intelligent and we can ignore them.

Edited February 15, 2008 by Pop

[Humodour]

Pop: How exactly do you plan to excise the password from him?

[Meshugger]

Why the hell can't they crack the encryption? It can't realistically be that hard.

 

No, it really is.

 

Meshugger: Not really. Most encryptions require brute-forcing by super-computers to decipher. It can take years to millions of years. This isn't World War 2.

 

Look here for details: http://en.wikipedia.org/wiki/Integer_factorization

 

Basically, it's an NP problem, and NP problems can't be solved quickly by today's computers. Quantum computers may offer some advances, but then you'll very likely get quantum cryptography to nullify that.

 

I was not talking about brute force. Hackers usually abuse different security hazards surrounding the software.

[Sand]

I don't think the 5th Amendment applies here because he showed the files to the authorities. He already showed them the incremenating evidence.

[Gorgon]

I don\t understand how a border guard can demand the password. If that happened to me I think I would conveniently forget.

 

In this case i'm glad they found him out though.

[astr0creep]

I don't think the 5th Amendment applies here because he showed the files to the authorities. He already showed them the incremenating evidence.

 

Yeah that's what I thought also.

 

They don't need the files, they need a psych exam on this evil french canadian terrorist to find out if he is a true pedophile or just some nut who surfs too carelessly.

[Enoch]

Presumably a laptop can be considered the same way a filing cabinet in an office might be considered. A judge in good standing can order a search of a filing cabinet if there's sufficient reason to suspect that illegal materials are contained within it. Refusal to cooperate with said order leads to penalization. Giving up a password is no different than giving up a key. It's not really an admission of guilt, exactly, but it's pretty damning all the same. One assumes the porn didn't show up on its own. Still, the fifth amendment can't protect a person from being linked to a crime by the state via evidence obtained through legal investigation, which can extend into one's private life. It does, however, give him the opportunity to refuse to answer when they ask "is this your laptop?" or "did you download this?". It won't help him, of course. You don't need a confession to convict someone of a crime. He's still ****ed, but he's still got that right not to provide testimony that incriminates himself.

I'm not sure I agree. Giving up a password is different from giving up a tangible key. Tangible objects can be demanded via subpoena. Reasonable searches and seizures are permitted under the 4th Amendment, but part of the point of the 5th Amendment is to establish that a "search" or "seizure" of information from a suspect's brain (i.e., compelled testimony) is always unreasonable.

 

Just because this wouldn't amount to an outright confession doesn't exempt it from constitutional protection. The 5th amendment protects the accused against being compelled to be a witness for any purpose that might be against his/her interests, not just compelled confessions. I don't see how "you have to tell us your password" is significantly different from "you have to tell us where the bodies are buried."

Edited February 15, 2008 by Enoch

[Nick_i_am]

This makes the difference between him potentially going to jail or not, so it's basically the same thing.

[Kaftan Barlast]

It's good that most criminals are also morons, if he hadnt said "Oh, and I also have some kiddy porn in there" when the customs people asked, he would have gone free. Honesty rules.

 

 

 

Useful info: In Sweden we have not one, but FOUR constitutions, so we're obviously superior to you silly Americanians. Also, they're constantly updated, in comparison to your lame old one.

[Tale]

Ours is constantly updated, too! And by "updated," I mean "flogged."

[walkerguy]

Odd topic for Obsidian Forums, then again, of course the Way Off pages. I think the Constitution is 100% right and he is free to keep the password. If U.S. authorities want to maintain a smooth legal system (there hasn't been one in years) we need to re-write our Constitution. If this was Saudi Arabia I could expect the muslim FBI bustin down my door but I'm lucky.

[Azarkon]

I'm more surprised he actually got busted for having child porn that he did not share... So Canada does random "we're going to go into your computer and see what you have on your HD" searches now? Cause it sounds like that he cooperated with the authorities after they decided to search through his HD (perhaps because he thought doing so might save his skin in case they discovered the files on their own). Isn't that an invasion of privacy?

Edited February 15, 2008 by Azarkon

[Tale]

Canada? US searches laptops at the border.

[Pop]

Pop: How exactly do you plan to excise the password from him?

How does a judge always get people to obey his orders? They have the stubborn one sit in a jail cell until his lawyers can appeal him out, which can take months, if not years, and only if his lawyers are good enough to get the appeal approved.

[Azarkon]

Canada? US searches laptops at the border.

 

I see... I guess I presumed that it was Canada because I heard they had stricter laws regarding digital pornography.

[Tale]

Canada? US searches laptops at the border.

 

I see... I guess I presumed that it was Canada because I heard they had stricter laws regarding digital pornography.

I don't know about Canada, but in the US under 18 is strictly verboten.

[alanschu]

Why the hell can't they crack the encryption? It can't realistically be that hard.

 

"When they came for the Jews I did nothing for I was not a Jew"...

 

Yeah, right. Here's my version:

 

"When they came for the people who liked looking at pictures of babies getting raped I said 'Hell yeah!' And threw jagged chunks of rock at the sick ****s. Because sometimes there are people who should be collected by large unpleasant men in the middle of the night."

 

 

Did I ever tell you you are one of my favourite Internet personas? I regret never finding Close Combat 3 hahaha.