That was the Boucher case. I can send you a copy of the ruling if you like.
"The password is not a physical thing… Compelling Boucher to produce the password compels him to display the contents of his mind to incriminate himself…"
There are some very interesting laws around the world regarding crypto. Bert-Jaap Koops Crypto Law Survey makes very interesting reading. http//
Lawrence Lessig (Harvard) also wrote a very interesting book called "Code as Law" (or "Code 2.0" for the second edition of the book) if you want to start thinking about how code & hardware relate to law and social control.
The issues are pretty complicated and a lot depends on your philosophical take on society, rights, etc. (Marx, Durkheim, Weber, Foucault, etc.) I'm working on my MA in Law at the moment and looking into this sort of thing.
I think it was squashed because of the would have forced him to give testimony. Providing the password immediately would have linked him to the machine, no matter of the content. That is, testifying to ownership and use.
I think it was squashed because of the would have forced him to give testimony. Providing the password immediately would have linked him to the machine, no matter of the content. That is, testifying to ownership and use.
And carrying / being in possession of the computer wouldn't also link him to the machine? I believe in this case that the suspect was actually using the thing at the time. ICE agents having seen him using the computer, and seen the contraband, it's a bit late now to unbake the cake by suggesting that requiring a password infringes his rights some how.
I'm against these computer forensic border searches of computers as a general principle, since it's a lot more extensive than checking your bags at a point of entry for drugs/bombs/etc (which I support). Depriving one of their possessions for an extensive period of time without probable cause (and a warrant / court order) is just wrong. If however, one is stupid enough to use the PC whilst in a customs area, and be seen with contraband (probable cause), then I'm all for it.
Boucher had the laptop computer on the back seat of his car. The customs officer opened it, found regular porn, and then called in an agent with forensic training.
The agent found a file called "2yo getting raped during diaper change" but couldn't open the file. Boucher, after being asked, opened the computers encrypted Z drive by entering a password and it's at that point that the CP was found. Boucher was arrested, and the laptop was shut down. Unfortunately the agent didn't get the password so there was no evidence of CP available to the investigators.
Boucher was then subpoenaed to get the password, and at that point he refused citing his fifth amendment right against self incrimination. The courts agreed.
I don't think linking him to the machine was the issue for the police, it was the lack of evidence of the crime.
Patrick4n6, correct.
I was thinking linking to the content and vaguely recalling the court's reasoning.
oops
That was the Boucher case. I can send you a copy of the ruling if you like.
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Already retrieved a copy of the decision, thanks.
I haven't read it in detail, so I don't know for sure if this information isn't in there, but I am curious about the way the subpoena was issued. It sounds like what we used to have here that were called "writs of assistance" but stopped using when the Charter came into force. Essentially they were a demand by law for anything that pertained to an investigation on the spot. No judicial oversight and typically used in narcotics cases.
Anyone know how the ICE subpoena was obtained in the first place? I believe that the IRS have a subpoena that they just fill in and hand over to the target that they use for books and records without judicial oversight. Was the ICE subpoena a similar situation?