07JAN08 – I read about a man who was entering the United States by airplane. His laptop was searched, child pornography was found, he was arrested. In every appeal and court hearing but one, he was found guilty. The ONE that stood apart was heard by Judge Dean D. Pregerson of Federal District Court in Los Angeles. In his decision, he wrote, “Electronic storage devices function as an extension of our own memory,” and so threw out evidence obtained from the laptop. After reading more, the argument as I see it, boils down to the question above, which comes first? Probable Cause or A Hard Drive Search?

Electronic storage devices certainly do contain a great deal of information that is not so easy to remember at all times. Phone numbers, address, writing ideas, essays, bookmarked webpages with recipes, biographies and video cameras featuring up-close zoom shots of young ball boys as was the case with John W. Ickes Jr., who crossed the Canadian border with a computer containing child pornography. A customs agent’s suspicions were raised, the court’s decision said, “after discovering a video camera containing a tape of a tennis match which focused excessively on a young ball boy.”

Sebastien Boucher, a Canadian who lives in New Hampshire. Mr. Boucher crossed the Canadian border by car about a year ago, and a customs agent noticed a laptop in the back seat. He was simply asked if he had child pornography on the laptop. He helped the Customs Officer through some passwords to view encrypted files of child pornography. When ordered by a Grand Jury to provide the password, a federal magistrate judge quashed that subpoena, saying that requiring Mr. Boucher to provide it would violate his Fifth Amendment right against self-incrimination. Last week, the government appealed.

“The core value of the Fifth Amendment is that you can’t be made to speak in ways that indicate your guilt,” Michael Froomkin, a law professor at the University of Miami, wrote about the Boucher case on his Discourse.net blog.

There’s a great deal of grey area and shades when you begin to examine details. First of all, isn’t everything digital now? Even some video cameras no longer use tape, but hard drives and flash memory instead. Are they protected from ruling about laptop hard drives? Are they eligible to provide the Probable Cause that leads to hard drive searches? Is Probable Cause needed to look at them as well? Encryption programs and passwords further bring a citizen’s rights and privacy into the matter. How many passwords can be accessed before someone’s rights are violated and they are incriminating themselves? Is that even an issue that should be considered moot?

In the case of the password for encrypted files, attorneys are arguing without precedent that since Mr. Boucher provided the passwords once already, he should do so again without the prosecution worrying about the defence of self-incrimination.