Academic journal article Harvard Journal of Law & Technology

Protecting Privacy through a Responsible Decryption Policy

Academic journal article Harvard Journal of Law & Technology

Protecting Privacy through a Responsible Decryption Policy

Article excerpt

TABLE OF CONTENTS

  I. INTRODUCTION
 II. ENCRYPTION
III. DOCUMENT PROTECTION AND THE ACT OF PRODUCTION
     DOCTRINE
     A. The Doctrine Today
     B. Encryption Does Not Fit Neatly into the Act of
         Production Doctrine
     C. The Future of Encryption Analyzed Under Document
         Production: Government "Hover" Orders
 IV. FINDING THE FIFTH AMENDMENT BALANCE
     A. Balancing the Purposes and Practical Realities of the
         Fifth Amendment Privilege
     B. A Responsible Decryption Policy
V. CONCLUSION

I. INTRODUCTION

In late December 2006, Sebastien Boucher crossed into Vermont from Canada. (1) At the border, customs officials inspected Boucher's car and found a laptop in the back seat. (2) A customs agent accessed the computer without entering a password and initiated a search for media files; the query returned tens of thousands of images. (3) Later, a special agent continuing the investigation found "thousands of images of adult pornography and animation depicting adult and child pornography." (4)

At this point, Boucher was detained, read his Miranda rights, and questioned by the agents. (5) At their request, Boucher showed the investigators where his downloaded files were located on the laptop. (6) The agents did not see Boucher enter any password in order to access the files, which were maintained on a hard drive designated as drive. (7) After the agents found several pornographic images and videos of children, they seized the laptop and arrested Boucher. (8)

Several days later, officers accessed the laptop and created a mirror image of the hard drive, yet they were unable to access drive Z because it was protected by an encryption algorithm. (9) An agent versed in computer forensics examined the drive and later testified that it would be virtually impossible to access the files, (10) as it would take years to unlock the drive without a password. (11) The grand jury subpoenaed Boucher, demanding that he "provide all documents, whether in electronic or paper form, reflecting any passwords used or associated with the [computer in question]." (12)

Boucher resisted the subpoena, stating that it violated his Fifth Amendment right against self-incrimination. (13) Initially, Magistrate Judge Niedermeier found that forcing Boucher to disclose the password would effectively compel him to testify against himself (14) and quashed the subpoena. (15) Although Chief Judge Sessions later overturned that decision, (16) the original order would have left law enforcement agents unable to catalogue or present as evidence the illegal pornography they knew Boucher possessed. (17)

Boucher is hardly the first time the government has grappled with the seemingly modern issue of data encryption. In 1776, then General George Washington discovered his Chief of Hospitals was sending coded letters to the British concerning the colonial army's supply levels and troop movements. (18) During Aaron Burr's trial for treason in the early 1800s, prosecutors requested that his secretary decipher Burr's personal correspondence, only to have the secretary refuse on Fifth Amendment grounds. (19) However, in each of these cases the government was able to recover the sought-after information simply by breaking the encryption code. (20) Today, the widespread availability of powerful encryption software guarantees that law enforcement will increasingly confront this problem without the ability to break the code in a reasonable amount of time.

Although Chief Judge Sessions permitted law enforcement access to the encrypted files, his ruling depended largely on the fact that Boucher had already voluntarily provided agents with access. (21) Absent this fact, law enforcement would be left facing practically unbreakable encryption with no reasonable recourse to secure important evidence. (22) This Note argues that the magistrate judge's analysis in Boucher I mischaracterizes the encryption issue. …

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