Is your password protected under the Fifth Amendment?
January 16, 2008
Today’s WaPo tells the tale of Sebastien Boucher, suspected of possessing child pornography on his laptop computer. The government has the computer, but Boucher is the only one with the password to un-encrypt the files — and he’s not talking. Boucher is not even sure he knows what the password is, but he’s downright certain of one thing: the Fifth Amendment protects his right not to incriminate himself by divulging it.
A U.S. Magistrate Judge in Vermont agreed, saying that Boucher “would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court.”
While the Justice Department seeks to have the ruling overturned, the war of words is underway on the electronic frontier.
Mark Rotenberg, executive director of the Electronic Privacy Information Center, told the Post that the ruling simply means the government needs to find another way to get the information. (Right now, prosecutors are trying a random-password generator, which they say could take years).
“But that’s as it should be,” Rotenberg says in the article. “That’s what the Fifth Amendment is intended to protect.”
But Mark D. Rasch, a privacy and technology expert with FTI Consulting, thinks the ruling is “dangerous” for law enforcement. “If it stands, it means that if you encrypt your documents, the government cannot force you to decrypt them,” Rasch told the Post. “So you’re going to see drug dealers and pedophiles encrypting their documents, secure in the knowledge that the police can’t get at them.”
What do you think?
BARBARA GRZINCIC, Managing Editor/Law
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