More on Boucher

 Posted on January 28,2008 in Uncategorized

Scott Greenfield writes to "deconstruct" (whatever that means) the Boucher confusion on password and privilege.

Scott and Orin Kerr and Gideon all presumed that Mr. Boucher had input the password at the border when agents asked to see what was on the computer. But the Boucher opinion doesn't actually say that Mr. Boucher input his password at the border. In fact, "Agent Curtis did not see Boucher enter a password to access drive Z."

Scott's reasoning, given in a comment to the "deconstructing" post, for his assumption that Mr. Boucher had input the password at the border is this: "It strikes me as hard to figure out how the border guards found the original kiddie porn file if he hadn't input the password in the first instance."

I'd like to propose two plausible explanations.

First, drive Z may already have been decrypted and mounted when Mr. Boucher woke his computer from sleep at the crossing. After seeing the suspect images, according to Magistrate Judge Niedermeier's opinion, "Agent Curtis arrested Boucher. He then seized the laptop, after shutting it down." This would have triggered the encryption software's unmount of drive Z.

Second (Scott, bear with me, I'm thinking like an actual criminal-defense lawyer) Agent Curtis may not have found a kiddie porn file on the computer. He might not have seen the contents of drive Z at all. He could be making up some or all of this story as a pretext to find out what is on drive Z. (Why, then, would Mr. Boucher refuse to open drive Z for the government? Because whatever the contents of drive Z, they none of the Government's damn business.)

That dispenses with what Scott calls "Orin's nit-picking on one fact," but how does it affect the analysis?

Scot thinks that one fact is important:

The difference is that each new question, new room searched, new act of sex (if one is inclined to follow Bennett's lead), is an independent act and hence entitled to independent protection. The password demanded from Boucher is not a new bit of information, but the same bit that has already been provided. They just need it again.

That's a distinction without a difference. If Magistrate Judge Niedermeier is right that this case poses a Fifth Amendment question, it doesn't matter whether Mr. Boucher had answered the government's question before.

The government can't compel an accused to answer its questions again any more than it could have compelled him to answer its questions the first time. If an accused confesses at the police station, he's not waiving his right to remain silent at trial. The government can't force him to answer the same questions at trial that he answered before. And if the government does force him to answer the questions, then it can't make either direct or derivative use of the answers against him.

If Mr. Boucher had not moved to quash the subpoena, or if the magistrate judge had denied the motion to quash, he could have taken the Fifth before the Grand Jury. Then the government could have given him immunity (technically or practically [by getting Judge Niedermeier to order him to answer the question]) and forced him to answer the question or go to jail for contempt (which might be less onerous than going to prison for possession of child pornography). If he had then answered the question, his answer would have been compelled, and the government couldn't use the answer against him directly or indirectly.

If Mr. Boucher had been compelled to provide his password and Agent Curtis became unavailable for trial, the only evidence the government would then have of the contents of the hard drive would have been derived from Mr. Boucher's compelled testimony, and would therefore have been inadmissible.

The only way the government wins this one is if the contents of Mr. Boucher's brain were never protected by the Fifth Amendment.