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16 December 2007
Date: Fri, 14 Dec 2007 18:42:41 -0800 From: Declan McCullagh <declan[at]well.com> To: politech[at]politechbot.com Subject: [Politech] Judge rules defendant can't be forced to divulge PGP passphrase [priv] I haven't been very prolific with Politech recently, in part because I'm trying to send out only more important items rather than routine news stories. This one meets the importance test. Text of article: http://www.news.com/8301-13578_3-9834495-38.html First three grafs: 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 the 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." Link to court opinion: http://www.volokh.com/files/Boucher.pdf Orin Kerr's this-ruling-is-wrong post: http://volokh.com/posts/1197670606.shtml Link to Michael Froomkin's old law review article touching on this: http://osaka.law.miami.edu/~froomkin/seminar/papers/anon/intlaw_paper.html -Declan
See also Bruce Schneier's Cryptogram of December 15, 2007, which reports on the increasing demands of governments for passwords and phrases: How to Secure Your Computer, Disks, and Portable Drives http://www.schneier.com/crypto-gram-0712.html