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Feds appeal loss in PGP compelled-passphrase case

A magistrate judge has ruled that, thanks to the Fifth Amendment, a criminal defendant cannot be compelled to divulge his PGP passphrase. The U.S. Justice Department is appealing.

It's time to take another look at the intriguing case of United States v. Boucher, which may set the ground rules for whether or not criminal defendants can be compelled to divulge encryption passphrases.

When I last wrote about the Boucher case, the U.S. Department of Justice was refusing to comment on the matter. Here's my original article from last month for background.

The case arose because federal agents believe Boucher has child pornography on his laptop, and obtained a warrant to search it. But part of the hard drive was PGP-encrypted, and the Feds obtained a subpoena to force him to disclose (or even simply type in) his passphrase.

U.S. Magistrate Judge Jerome Niedermeier in Vermont rejected the subpoena on Fifth Amendment grounds--namely, that compelled disclosure of a passphrase amounted to self-incrimination. The Fifth Amendment says no person "shall be compelled in any criminal case to be a witness against himself."

The Washington Post, by the way, finally got around to writing about this (a month later) on Wednesday in a page one article. It quotes Boucher as saying that he likes to download Japanese cartoons and occasionally adult pornography, but that he does not seek to view child porn.

Now the Justice Department is filing a sealed appeal to the magistrate judge's decision to U.S. District Judge William K. Sessions. Sessions is a Clinton appointee, a former public defender who became a partner at the Middlebury, Vt. law firm Sessions, Keiner, Dumont & Barnes. He was part of the U.S. Sentencing Commission during the Clinton administration.

What's a bit odd is that, as far as I can tell, the Feds' appeal brief itself was filed under seal on January 2, and Boucher's reply brief in opposition filed on January 15 was also under seal. Considering that the original criminal complaint is public, and the magistrate judge's Fifth Amendment decision is public, there's no obvious reason why this extra secrecy is necessary. More on this as the case progresses.