Suspect in illegal pornography ownership case forced to decrypt hard drive

This story I am torn on because while I certainly think the man should be prosecuted for such crimes (and severely) I don’t like the precedent it could set for 5th Amendment rights in the digital age. In the case at hand a man whom is suspected of owning child pornography on a laptop was ordered by a judge to decrypt his hard drive so that members of prosecution can gather the evidence needed for their case. Now before I get into any more details let me explain how this came to pass.

The suspect, Sebastien Boucher, was crossing into the United States from Canada in 2006 when he was stopped at the border crossing. Border agents claimed they found child pornography on Mr. Boucher’s laptop. He also, allegedly, told agents that he may have downloaded child pornography. At some point here his laptop was shut down. What the agents did not know at the time is that the suspect’s computer data was encrypted using PGP (stands for Pretty Good Protection) an encryption system that is used for encrypting a wide range of data. The next time the authorities tried to access his computer they could not get past the encryption scheme to access the data and Mr. Boucher, citing 5th Amendment rights against self-incrimination, refused to decrypt it for them.

Now on one hand it seems very likely that this man does in fact possess the incriminating material on his computer and for that I would like to see the life stamped out of him. However, the struggle I face in this matter is not in the prosecution of a man facing child porn-related charges, but in the method used to gather the evidence against him. It sets a dangerous precedent for future cases for lesser crimes in which passwords can be demanded from defendants in order to gather the evidence needed for prosecution. By being forced to give a password or decrypt (unlock) data you are forcing self-incrimination. In the past things such as the combination to a safe were protected by the 5th Amendment rights and the only difference here is the safe is digital instead of physical.

Don’t get me wrong. I absolutely hate it when the law is twisted and perverted and a criminal gets away on a technicality. Unfortunately I feel stuck between two worlds here. The first one is my gut reaction to throw the book at this guy and forget proper legal proceedure. The second is my vehement support of human and Constitutional rights that says that decrypting his data would be self-incrimination and that he is fully protected by 5th Amendment rights. In this case I would strongly support finding another way to gather evidence if at all possible. But in the case that there is no other way to get hard evidence I then want to refer to the greater good argument. Unfortunately that defense is about as torn. Protect the rights of all American citizens with an early precedent and let someone whom perpetuates a horrible problem of child abuse and exploitation on the internet go free to protect those rights. Or wait until the next case that involves a lesser crime be the hopefully precedent setter and in the mean time use any means to lock this man up.

At this point I have very little faith that we will get a second chance to protect our 5th Amendment rights and I believe their is enough eye witness evidence to lock this man up for at least a little while and possible put him through some psychological rehabilitation (though I doubt this would do more than scare him at best). So I have to conclude that we need to protect this man’s 5th Amendment rights this time and not pray for a better case to come along next time. This is just one of those hard choices in life.

I would very much welcome any comments or thoughts on this. The original article can be found at: http://www.theregister.co.uk/2009/03/03/encryption_password_ruling/

-Pjerky

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Tags: 5th Amendment, Canada, Constitutional Rights, decryption, encryption, Human Rights, PGP, Porn, Pornography, US