Saturday, December 15, 2007

Fifth Amendment Victory

Saw an interesting post over on The Volokh Conspiracy about a first dip into a murky 5th Amendment issue - can the gov't compel a suspect to enter a computer password? A man was detained at the Vermont-Canada border on suspicion of transporting child porn (ick) on his laptop across the border. The feds found some rather suggestively named files on the laptop but they couldn't open them, as they were encrypted. The grand jury issued a subpoena to compel the suspect to provide the password. The magistrate judge ruled that such production would amount to forced incriminating testimony and is thus forbidden under the 5th Amendment. Subpoena quashed. Prof Volokh thinks the magistrate got it wrong. Well, I'm no 5th Amendment scholar, but this decision seems to harmonize nicely with the spirit of the Amendment. The gov't confiscated the laptop - if they want to get files off the thing for the purpose of banging this guy up in chokey, that's their problem. Hardly fair to ask the suspect to do the government's work for them. The full decision of the magistrate is on TVC. Check it out if you're interested.

A note of interest: the encryption software used by the suspect is commercially available and apparently good enough to defeat all law enforcement efforts to beat it. Interesting.


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