Exigent Circumstances and The 5th Amendment
A federal judge has ordered a criminal defendant to decrypt his hard drive by typing in his PGP passphrase so prosecutors can view the unencrypted files, a ruling that raises serious concerns about self-incrimination in an electronic age.
In an abrupt reversal, U.S. District Judge William Sessions in Vermont ruled that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, does not have a Fifth Amendment right to keep the files encrypted.
“Boucher is directed to provide an unencrypted version of the Z drive viewed by the ICE agent,” Sessions wrote in an opinion last week, referring to Homeland Security’s Immigration and Customs Enforcement bureau. Police claim to have viewed illegal images on the laptop at the border, but say they couldn’t access the Z: drive when they tried again nine days after Boucher was arrested.
Boucher’s attorney, Jim Budreau, already has filed an appeal to the Second Circuit. That makes it likely to turn into a precedent-setting case that creates new ground rules for electronic privacy, especially since Homeland Security claims the right to seize laptops at the border for an indefinite period. Budreau was out of the office on Thursday and could not immediately be reached for comment.
First it was the allowance for DHS/TSA/ICE to just seize your computer at a border crossing or at the airport. Now its you “Must” provide your passphrase to encrypt your data because the 5th ammendment does not apply. Now, I have some problems with the whole notion from the start that these minimum wage “pseudo” night guards, can claim “exigent circumstances” and take your laptop. Add to this the precedent set with this case, it’s downright scary out there.
Now, I have no love for the child molester or the guy out there making, partaking in, and passing around kiddie porn, bit, I had thought that our time of trashing the constitution was over with the new administration. Perhaps I am wrong? Or is this a hold over from our last eight years of Bush love?
In any case, this sets a very bad precedent for anyone travelling with a laptop and anything they might hold private because Johnny, I make 10 bucks an hour TSA wants a look at your porn and now the courts say you have to void your fifth amendment rights.