April 28, 2009
Creeping Totalitarianism Department
Subpoena of an Encrypted Hard Drive
Jon Katz writes about the Boucher case, where the government is trying to get a look at the contents of Boucher's encrypted hard drive:
Boucher prevailed with the magistrate judge below, who talked of the Fifth Amendment right not to reveal one's computer password. On appeal to District Court Judge Sessions, the prosecution fashioned its argument as not seeking a password but seeking an unencrypted copy of the hard drive of Boucher's laptop.
I hate this crap.
Unless I'm thinking of the wrong case, Boucher's computer was searched by Customs agents when he entered the country under the you-have-no-rights-when-crossing-the-border exception to the Constitution.
(These days, the government has stretched their power to search for contraband at the border so it even covers data on your hard drive. It makes no sense, but no one is stopping them.)
Boucher is, of course, accused of having child pornography on the hard drive. I say "of course" because when the feds want to chip away at our rights, they try to pick a crime where you'd really hate to see someone get away with it on a technicality.
For some reason, the agents did not preserve the ugly evidence at the time. Now they have Boucher's computer but they can't read it any more because the hard drive is encrypted. So they're trying to force Boucher to help them decrypt it.
In the infosec trade, this is called "rubber hose cryptography"---why go through the trouble of trying to crack the code when you can coerce the information out of someone?
Right now, it's only under narrow circumstances, and of course they're trying to save the children. But once that that camel's nose pokes through the tent flap, the whole stinky beast isn't far behind.
Anyway, I am not a lawyer, and what little I know about subpoenas comes from my unpleasant experiences with Illinois civil procedure, but I think if I were Boucher's lawyer, my response would be that my client does not possess an unencrypted copy of the hard drive.
Somehow, though, I'm sure the prosecutor and the judge will figure out a way.
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