Post Process

Everything to do with E-discovery & ESI

Judge: 5th amendment extends to PGP Passphrase

Posted by rjbiii on December 15, 2007

Question: Is a PGP passphrase like a key to a filing cabinet, or is it more like an extension of the contents of your mind? Deciding the question determines whether or not a defendant can be compelled to reveal the passphrase. A Vermont Judge, U.S. Magistrate Judge Jerome Niedermeier, has made up his mind:

A federal judge in Vermont has ruled that prosecutors can’t force a criminal defendant accused of having illegal images on his hard drive to divulge his PGP (Pretty Good Privacy) passphrase.

U.S. Magistrate Judge Jerome Niedermeier ruled that a man charged with transporting child pornography on his laptop across the Canadian border has a Fifth Amendment right not to turn over the passphrase to prosecutors. The Fifth Amendment protects the right to avoid self-incrimination.

Niedermeier tossed out a grand jury’s subpoena that directed Sebastien Boucher to provide “any passwords” used with his Alienware laptop. “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him,” the judge wrote in an order dated November 29 that went unnoticed until this week. “Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

Under the facts of the case, as reported in the article, it is hard to feel any sympathy for the defendant. Emotions aside, however, the issue has enormous implications for DA’s trying to collect evidence in a world that is ever more “virtual” in nature. More of our actions and deeds are recorded on some form of computer-based media than ever before. While I have personally decried the recent erosion of privacy rights, I have mixed feelings on this particular issue.

The ruling can be found here (pdf).
[HT: Slashdot]

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