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PoliCon
02-27-2009, 12:31 PM
February 26, 2009 1:30 PM PST
Judge orders defendant to decrypt PGP-protected laptop
by Declan McCullagh



A federal judge has ordered a criminal defendant to decrypt his hard drive by typing in his PGP passphrase so prosecutors can view the unencrypted files, a ruling that raises serious concerns about self-incrimination in an electronic age.

In an abrupt reversal, U.S. District Judge William Sessions in Vermont ruled that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, does not have a Fifth Amendment right to keep the files encrypted.

"Boucher is directed to provide an unencrypted version of the Z drive viewed by the ICE agent," Sessions wrote in an opinion last week, referring to Homeland Security's Immigration and Customs Enforcement bureau. Police claim to have viewed illegal images on the laptop at the border, but say they couldn't access the Z: drive when they tried again nine days after Boucher was arrested.

Boucher's attorney, Jim Budreau, already has filed an appeal to the Second Circuit. That makes it likely to turn into a precedent-setting case that creates new ground rules for electronic privacy, especially since Homeland Security claims the right to seize laptops at the border for an indefinite period. Budreau was out of the office on Thursday and could not immediately be reached for comment.

CONTINUED (http://news.cnet.com/8301-13578_3-10172866-38.html)

PoliCon
02-27-2009, 12:31 PM
any way you slice it - this is scary. :( And is bound to end badly. :(

FlaGator
02-27-2009, 01:03 PM
any way you slice it - this is scary. :( And is bound to end badly. :(

This is one I'd have to sit in jail for if someone ordered me to decrypt my personal files. This violates the right not to incriminate one's self. This is the same reason I am philosophically against breathalyzers and forced blood tests. I understand by accepting my license to drive I am being forced to give up these rights but that doesn't make it a proper thing to do.

Full-Auto
02-27-2009, 01:22 PM
I would take a contempt charge and tell the judge to go pound sand... and brush up on his Constitutional law while he's at it.

Odysseus
02-27-2009, 09:12 PM
any way you slice it - this is scary. :( And is bound to end badly. :(


This is one I'd have to sit in jail for if someone ordered me to decrypt my personal files. This violates the right not to incriminate one's self. This is the same reason I am philosophically against breathalyzers and forced blood tests. I understand by accepting my license to drive I am being forced to give up these rights but that doesn't make it a proper thing to do.


I would take a contempt charge and tell the judge to go pound sand... and brush up on his Constitutional law while he's at it.

I'm actually with the judge on this one. The requirement for a search is a warrant issued upon probable cause, and the testimony of a fellow border security officer sounds like probable cause to me. The issue is whether the judge can compel the owner of the laptop to provide the decryption keys, and the operative word is "keys." Just as you have to open your house to a search warrant, you have to open your files. The principle is the same.

PoliCon
02-27-2009, 09:22 PM
I'm actually with the judge on this one. The requirement for a search is a warrant issued upon probable cause, and the testimony of a fellow border security officer sounds like probable cause to me. The issue is whether the judge can compel the owner of the laptop to provide the decryption keys, and the operative word is "keys." Just as you have to open your house to a search warrant, you have to open your files. The principle is the same.

like I said - scary no matter which way this goes . . . .

Lars1701a
02-27-2009, 09:32 PM
I'm actually with the judge on this one. The requirement for a search is a warrant issued upon probable cause, and the testimony of a fellow border security officer sounds like probable cause to me. The issue is whether the judge can compel the owner of the laptop to provide the decryption keys, and the operative word is "keys." Just as you have to open your house to a search warrant, you have to open your files. The principle is the same.

No you dont have to provide keys to your house. They will just bash the door in, but you are under no obligation to open the door. (its easer and smarter to open the door) I side with the defendant on this. If they want whats on the laptop let them hack into it.

FeebMaster
02-27-2009, 09:36 PM
I'm actually with the judge on this one. The requirement for a search is a warrant issued upon probable cause, and the testimony of a fellow border security officer sounds like probable cause to me. The issue is whether the judge can compel the owner of the laptop to provide the decryption keys, and the operative word is "keys." Just as you have to open your house to a search warrant, you have to open your files. The principle is the same.

You don't have to open your house, you do it or they'll break the door in and shoot your dog, assuming they even offer you the option.

Besides, they have the laptop and the data it contains in their possession. If they can't make sense of it, too bad. They should have thought of that before searching and confiscating the laptop in the first place.

Lars1701a
02-27-2009, 09:44 PM
Oh God, I agree with feeb :( (I think I threw up a little in my mouth)

FeebMaster
02-27-2009, 10:07 PM
Oh God, I agree with feeb :( (I think I threw up a little in my mouth)

Careful. Could be the start of a long downward spiral.

lacarnut
02-27-2009, 10:39 PM
The perp commited a crime by having child porno on his computer which the border agents observed. I think the judge's ruling is correct. Just go ahead and try this piece of shit based on the border agents testimony. I don't have a problem giving up a tiny weenie piece of my so called rights to get a potential child molestor off the streets.

Odysseus
02-27-2009, 10:48 PM
You don't have to open your house, you do it or they'll break the door in and shoot your dog, assuming they even offer you the option.

Besides, they have the laptop and the data it contains in their possession. If they can't make sense of it, too bad. They should have thought of that before searching and confiscating the laptop in the first place.
And the reason that they'll break in your door is because you're refusing a warrant. Again, this is a warrant issued based upon probable cause. That makes the search legal under the Fourth Amendment. As for the laptop, if they can decrypt it (and sooner or later, they will), then I have no problem with them adding obstruction of justice to the charges.

Oh God, I agree with feeb :( (I think I threw up a little in my mouth)
If that doesn't tell you that you're on the wrong side of the argument, I don't know what does.

The Constitution doesn't give felons the right to hide evidence of a crime. It does require that the police have a legitimate reason for instigating a search. In this case, they do. The judge is right to issue the warrant.

FeebMaster
02-27-2009, 11:14 PM
The perp commited a crime by having child porno on his computer which the border agents observed.

Allegedly.


I don't have a problem giving up a tiny weenie piece of my so called rights to get a potential child molestor off the streets.

And that is why you are going to lose.



And the reason that they'll break in your door is because you're refusing a warrant.

Or they're afraid you're going to flush your laptop down the toilet or something.


As for the laptop, if they can decrypt it (and sooner or later, they will), then I have no problem with them adding obstruction of justice to the charges.

Dream on. The only way that thing is getting decrypted is if he gives up the key.


The Constitution doesn't give felons the right to hide evidence of a crime. It does require that the police have a legitimate reason for instigating a search. In this case, they do. The judge is right to issue the warrant.

What was the legitimate reason for instigating the initial search?

FlaGator
02-27-2009, 11:54 PM
And the reason that they'll break in your door is because you're refusing a warrant. Again, this is a warrant issued based upon probable cause. That makes the search legal under the Fourth Amendment. As for the laptop, if they can decrypt it (and sooner or later, they will), then I have no problem with them adding obstruction of justice to the charges.

If that doesn't tell you that you're on the wrong side of the argument, I don't know what does.

The Constitution doesn't give felons the right to hide evidence of a crime. It does require that the police have a legitimate reason for instigating a search. In this case, they do. The judge is right to issue the warrant.

As feeb pointed out, they have possession of the data. OK they take my blood, do I have to perform the tox-screen on it too? I am not required to tell them what drugs are in my system. That's for them to figure out.

PoliCon
02-28-2009, 12:18 AM
The perp commited a crime by having child porno on his computer which the border agents observed. I think the judge's ruling is correct. Just go ahead and try this piece of shit based on the border agents testimony. I don't have a problem giving up a tiny weenie piece of my so called rights to get a potential child molestor off the streets.

I want child molesters given the death penalty - but I'm NOT willing to sacrifice my freedoms to get it. There is more than one way to skin a cat - I don't have to become a slave to get the job done. :mad:

lacarnut
02-28-2009, 02:18 AM
Allegedly.



And that is why you are going to lose.


They saw what they saw; otherwise they would not have confiscated his laptop nor arrested him.

We will have to see what the courts decide and if the perp is going to jail, won't we.

FeebMaster
02-28-2009, 03:04 AM
They saw what they saw; otherwise they would not have confiscated his laptop nor arrested him.

We will have to see what the courts decide and if the perp is going to jail, won't we.

Oh, he's going to jail. No question there. That doesn't mean a court has any business compelling him to give up his encryption keys.

Constitutionally Speaking
02-28-2009, 05:43 AM
Oh God, I agree with feeb :( (I think I threw up a little in my mouth)

Feebs' underlying reasons for his positions are actually quite correct, he just doesn't have much use for the practical part, nor will he lift a finger to change things.

biccat
02-28-2009, 07:32 AM
And the reason that they'll break in your door is because you're refusing a warrant. Again, this is a warrant issued based upon probable cause. That makes the search legal under the Fourth Amendment. As for the laptop, if they can decrypt it (and sooner or later, they will), then I have no problem with them adding obstruction of justice to the charges.
Just because it's legal under the fourth amendment doesn't mean it's legal under the Fifth. Two separate rights are at issue.


The Constitution doesn't give felons the right to hide evidence of a crime. It does require that the police have a legitimate reason for instigating a search. In this case, they do. The judge is right to issue the warrant.
Really? Then what is the 5th amendment all about? Can a prosecutor call a defendant as a witness against his will and compel him to answer the question "did you commit this crime?" And if he answers "no" and the jury returns a guilty verdict, can he have a contempt/obstruction of justice charge thrown against him as well?

A defendant has no obligation to make the prosecution's case easier. He has the right to refuse to provide incriminating evidence against himself.

However, the legal issue here is whether a defendant's password to computer files is a statement or whether it is a possession. Courts have ruled that providing fingerprints, DNA, and clothing do not require the defendant to be a witness against himself, but that these are possessions which may be properly sought by warrant.

Personally, I think that the encryption code would probably constitute "intellectual property" and therefore would be subject to a search by warrant. But I can also see the other side, if the data on the computer can be discovered (and any encoding can be broken), but they want the defendant's help in discovering the information to help the case against him, he has a fifth amendment right to refuse to provide the key.

FlaGator
02-28-2009, 07:51 AM
They saw what they saw; otherwise they would not have confiscated his laptop nor arrested him.

We will have to see what the courts decide and if the perp is going to jail, won't we.

And you know that how? Because they say they saw it?

CorwinK
02-28-2009, 12:26 PM
Id have to say that the defendant retains his 5th amendment rights. As much as people who do that sort of thing sicken me, he has rights too. It is not up to the defendant to provide evidence (or a way to access evidence) to prove a guilty verdict upon himself. He is innocent until proven guilty and it is the prosecutions job to conduct the investigation and uncover the evidence. I say that the prosecution has to hack the computer. Drug dealers don't tell the prosecution where their drugs are, why should someone tell the prosecution how to access self incriminating files (provided there are any) on his computer? Issue a search warrant and let the IT gurus from round the department hack the damn thing.

lacarnut
02-28-2009, 02:47 PM
And you know that how? Because they say they saw it?

How do you know that it is not true. You think a jury will believe the perp or the 2 agents? BTW, since I was not there and you were not there, neither one of us know for certainty. Correct! I think there is a great deal more to this story. The police could have been tipped off. Do border agents willy nilly search people's laptops?

PoliCon
02-28-2009, 05:14 PM
Tipped off or not - no one and i mean NO ONE should be required to give testimony or evidence against themselves.

Phillygirl
02-28-2009, 07:08 PM
The perp commited a crime by having child porno on his computer which the border agents observed. I think the judge's ruling is correct. Just go ahead and try this piece of shit based on the border agents testimony. I don't have a problem giving up a tiny weenie piece of my so called rights to get a potential child molestor off the streets.

Actually, you're willing to give up someone else's rights to get this guy off the street.

Odysseus
02-28-2009, 09:22 PM
February 26, 2009 1:30 PM PST
[SIZE="5"]In an abrupt reversal, U.S. District Judge William Sessions in Vermont ruled that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, does not have a Fifth Amendment right to keep the files encrypted.

"Boucher is directed to provide an unencrypted version of the Z drive viewed by the ICE agent," Sessions wrote in an opinion last week, referring to Homeland Security's Immigration and Customs Enforcement bureau. Police claim to have viewed illegal images on the laptop at the border, but say they couldn't access the Z: drive when they tried again nine days after Boucher was arrested.


Or they're afraid you're going to flush your laptop down the toilet or something.
Unlikely. A warrant gives the police the right to enter and search. Refusal to comply with a warrant is a crime on its own, it's called "Obstruction of Justice."

Dream on. The only way that thing is getting decrypted is if he gives up the key.
Hate to have to tell you this, but there's no such thing as unbreakable encryption at the consumer level. It's just a matter of applying sufficient processor power.

What was the legitimate reason for instigating the initial search?
Border entry. US Customs has the legal authority to search all objects crossing the border. They can open mail and intercept electronic communications. Ever heard of Venona? JN-35? The Purple Code? These were all legal interceptions of electronic communications originating outside of the US.

Just because it's legal under the fourth amendment doesn't mean it's legal under the Fifth. Two separate rights are at issue.
Really? Then what is the 5th amendment all about? Can a prosecutor call a defendant as a witness against his will and compel him to answer the question "did you commit this crime?" And if he answers "no" and the jury returns a guilty verdict, can he have a contempt/obstruction of justice charge thrown against him as well?
A defendant has no obligation to make the prosecution's case easier. He has the right to refuse to provide incriminating evidence against himself.
However, the legal issue here is whether a defendant's password to computer files is a statement or whether it is a possession. Courts have ruled that providing fingerprints, DNA, and clothing do not require the defendant to be a witness against himself, but that these are possessions which may be properly sought by warrant.
Personally, I think that the encryption code would probably constitute "intellectual property" and therefore would be subject to a search by warrant. But I can also see the other side, if the data on the computer can be discovered (and any encoding can be broken), but they want the defendant's help in discovering the information to help the case against him, he has a fifth amendment right to refuse to provide the key.
If the encryption software was produced by the defendent and was proprietary, then it would be his intellectual property. You cannot copyright a title or a word, although you can trademark it. However, if the defendant had trademarked his password, then it wouldn't be secret.
If I refuse to provide a key to a locked box in my home when it is being searched under a warrant, the police have the authority to cut the lock. There is no right to hide or destroy evidence of a felony, and child pornography is evidence of the physical and sexual abuse of children.

Tipped off or not - no one and i mean NO ONE should be required to give testimony or evidence against themselves.
He's not being required to give testimony. He is being required to provide access for a search, based on probable cause, that being the testimony of the ICE agent who claims to have observed the images on this guy's laptop.

Actually, you're willing to give up someone else's rights to get this guy off the street.
During my R&R trip from Iraq in OIF III, every person on our flight was ordered to boot up their laptops and submit to an image search for porn. Not kiddie porn, just regular, adult porn. Under General Order 1, we were not permitted to have it in theater. I had no problem submitting my computer for the search because I knew the rules and was prepared to live by them. The rules in this case are no sexual images of children, period. He knew that coming in. He got caught, and is now trying to hide the evidence. The Fifth Amendment doesn't give you the right to conceal proof of a crime.

PoliCon
02-28-2009, 10:11 PM
He's not being required to give testimony. He is being required to provide access for a search, based on probable cause, that being the testimony of the ICE agent who claims to have observed the images on this guy's laptop. They want him to give evidence against himself. They want him to GIVE THEM evidence.

Celtic Rose
02-28-2009, 10:21 PM
They want him to give evidence against himself. They want him to GIVE THEM evidence.

If the police have a warrant for a locked safe, does the law required the owner of the safe to open it? I would assume so. If that is the case, then I would say that it would set the precedent for an encrypted computer. Of course the reverse would also be true. If anybody actually knows what the law says about that, I would appreciate the input.

FlaGator
02-28-2009, 10:28 PM
How do you know that it is not true. You think a jury will believe the perp or the 2 agents? BTW, since I was not there and you were not there, neither one of us know for certainty. Correct! I think there is a great deal more to this story. The police could have been tipped off. Do border agents willy nilly search people's laptops?

I don't immediately trust the authorities because they are authorities. They are human just like us and driven by human motives and intentions. Not all of these are good. Anyways, they got the data, let them figure out how to make sense of it. As for being tipped off, if I tip off the cops that you have a house for of cocaine does that give them the right to enter your house and search?

FeebMaster
02-28-2009, 10:41 PM
Unlikely. A warrant gives the police the right to enter and search. Refusal to comply with a warrant is a crime on its own, it's called "Obstruction of Justice."

I'd call it a civic duty.


Hate to have to tell you this, but there's no such thing as unbreakable encryption at the consumer level. It's just a matter of applying sufficient processor power.

lol. You make it sound like they just have to plug this thing into some supercomputer and out pops the data. I suppose you wouldn't mind if he walks free while the feds spend the next 10,000 years decrypting his laptop.

This originally happened in 2006. Hopefully they haven't just been sitting around waiting for him to give up the key. All that wasted time. You never know, they might have gotten lucky.


Border entry. US Customs has the legal authority to search all objects crossing the border. They can open mail and intercept electronic communications. Ever heard of Venona? JN-35? The Purple Code? These were all legal interceptions of electronic communications originating outside of the US.

I said legitimate.

FeebMaster
02-28-2009, 10:42 PM
Feebs' underlying reasons for his positions are actually quite correct, he just doesn't have much use for the practical part, nor will he lift a finger to change things.

I just disagree on what's practical.

PoliCon
02-28-2009, 11:09 PM
If the police have a warrant for a locked safe, does the law required the owner of the safe to open it? I would assume so. If that is the case, then I would say that it would set the precedent for an encrypted computer. Of course the reverse would also be true. If anybody actually knows what the law says about that, I would appreciate the input.

I'm sorry - if the safe is locked - tough titties. I'm not giving up the combination. They can get it open their damn selves.

lacarnut
02-28-2009, 11:25 PM
Actually, you're willing to give up someone else's rights to get this guy off the street.

It all depends on the circumstances which you do not know the full details of nor do I. Like I said there is probably a lot more to this story that meets the eye called evidence. Let the courts hash it out. FYI, one court ordered him to give the feds the info. If it goes to the S.C. and they uphold this decision will you still be parroting rights?

lacarnut
02-28-2009, 11:36 PM
I don't immediately trust the authorities because they are authorities. They are human just like us and driven by human motives and intentions. Not all of these are good. Anyways, they got the data, let them figure out how to make sense of it. As for being tipped off, if I tip off the cops that you have a house for of cocaine does that give them the right to enter your house and search?

If the cops came to my house under those circumstances, I would tell them that I do not have a police record and that I want to know who, what and why they want to search my house. I don't think a Judge would issue a warrant on someone in my position.

lacarnut
02-28-2009, 11:42 PM
+1, all the way.

The so-called rights bled for by our Founding Fathers, guaranteed us in the Constitution have stood in the government's way long enough. In fact, I think the government should have unlimited access to search our computer hard drives, cell phone records, automobiles, credit card records, persons and houses at any time. After all, they have to make sure no children are being harmed and no terrorists are camping out in our attics - both much scarier than any erosion of personal liberty. Plus, hey, if you're not doing anything wrong, you have nothing to worry about, right?

Ever heard of probable cause. That is what this case boils downs to not your other rantings about the government having unlimited acess to anything and everything. You can pay a private company to obtain a shit pot full of information about anyone that you think is not obtainable. Correct.

I am not doing anything wrong. How about you?

biccat
03-01-2009, 08:20 AM
If the encryption software was produced by the defendent and was proprietary, then it would be his intellectual property. You cannot copyright a title or a word, although you can trademark it. However, if the defendant had trademarked his password, then it wouldn't be secret.
If I refuse to provide a key to a locked box in my home when it is being searched under a warrant, the police have the authority to cut the lock. There is no right to hide or destroy evidence of a felony, and child pornography is evidence of the physical and sexual abuse of children.
Actually the IP here doesn't have to be a trademark or copyright.

It is possible to copyright a title or a word, as long as it is a creative work. The PGP key would probably best fit under the definition of trade secret, merely a private compilation of information.


He's not being required to give testimony. He is being required to provide access for a search, based on probable cause, that being the testimony of the ICE agent who claims to have observed the images on this guy's laptop.
Well, after reading briefly through the case (http://www.volokh.com/files/Boucher.pdf), I would like to reverse my previous position. This is most clearly a violation of the 5th amendment.

Kudos to Celtic Rose for pointing me in the right direction.

In Doe v. United States (http://supreme.justia.com/us/487/201/case.html) the court distinguished between providing a key to a safe (constitutional) and providing the combination to a safe (unconstitutional). See also United States v. Hubbell (http://supreme.justia.com/us/530/27/case.html) at 43, and Curcio v. United States (http://supreme.justia.com/us/354/118/case.html).

In the latter case, a defendant was allowed to withhold information relating to the location of record books, even though the contents of the record books were not privileged.

So it seems that the judge here was totally off his rocker, he cited the most relevant case law and then went completely against it's ruling.

PoliCon
03-01-2009, 09:30 AM
Ever heard of probable cause. That is what this case boils downs to not your other rantings about the government having unlimited acess to anything and everything. You can pay a private company to obtain a shit pot full of information about anyone that you think is not obtainable. Correct.

I am not doing anything wrong. How about you? You're a conservative. That's going to end up being a thought crime the way things are going . . . . do you really want them to be able to target you at will?

Celtic Rose
03-01-2009, 10:22 AM
Actually the IP here doesn't have to be a trademark or copyright.

It is possible to copyright a title or a word, as long as it is a creative work. The PGP key would probably best fit under the definition of trade secret, merely a private compilation of information.


Well, after reading briefly through the case (http://www.volokh.com/files/Boucher.pdf), I would like to reverse my previous position. This is most clearly a violation of the 5th amendment.

Kudos to Celtic Rose for pointing me in the right direction.

In Doe v. United States (http://supreme.justia.com/us/487/201/case.html) the court distinguished between providing a key to a safe (constitutional) and providing the combination to a safe (unconstitutional). See also United States v. Hubbell (http://supreme.justia.com/us/530/27/case.html) at 43, and Curcio v. United States (http://supreme.justia.com/us/354/118/case.html).

In the latter case, a defendant was allowed to withhold information relating to the location of record books, even though the contents of the record books were not privileged.

So it seems that the judge here was totally off his rocker, he cited the most relevant case law and then went completely against it's ruling.

Very interesting. Thank you finding those cases. Sounds like the guy's attorney needs to do a little more case work to look into precedent. :cool:

PoliCon
03-01-2009, 10:49 AM
So it seems that the judge here was totally off his rocker, he cited the most relevant case law and then went completely against it's ruling.Did you notice where said judge was from? OF COURSE he's off his rocker!!:rolleyes:

biccat
03-01-2009, 12:46 PM
Crap, I need to pay attention better. A brief timeline is in order.

First, the Government served a subpoena onto Boucher to produce an unencrypted copy of the disk.

Second, Boucher filed a motion to quash (remove) the subpoena. Judge Niedermeier was the magistrate who wrote the original opinion that Boucher did not have to comply as it violated his Fifth Amendment right against self-incrimination. (http://www.volokh.com/files/Boucher.pdf) Niedermeier cited the Doe case I linked to above.

Third, the government appealed to the Federal District Court, where Judge Sessions reversed Niedermeier, holding that Boucher had to comply with the subpoena. (http://volokh.com/files/BoucherDCT.1.pdf)

A few things to take from Sessions' opinion:
* The police already knew the contents of the laptop.
* Boucher had voluntarily allowed the police to inspect his laptop, prompting his arrest.
* Once an individual has voluntarily cooperated and provided access to (using the last metaphor) a safe, he cannot later refuse to cooperate with the police by locking the safe and claiming fifth amendment protection of the combination.
* The "testimony" at stake here is Boucher admitting ownership of the computer. Since this has been established without the password, and the government won't use this "testimony" to establish ownership, there's no Fifth Amendment problem.

There's certainly more to this case than meets the eye, and while I still think Niedermeier had it right, Sessions' argument does hold water.

So my apologies to Judge Niedermeier for improperly associating his opinion with this story.

Odysseus
03-01-2009, 09:02 PM
They want him to give evidence against himself. They want him to GIVE THEM evidence.
He's already given them the evidence.

I'd call it a civic duty.
There is no civic duty to resist legitimate legal procedures. At best, it's a personal interest.

lol. You make it sound like they just have to plug this thing into some supercomputer and out pops the data. I suppose you wouldn't mind if he walks free while the feds spend the next 10,000 years decrypting his laptop.
This originally happened in 2006. Hopefully they haven't just been sitting around waiting for him to give up the key. All that wasted time. You never know, they might have gotten lucky.
I said legitimate.
Customs has a legitimate reason to inspect his laptop. Border entry is one of the few areas where you can be compelled to open anything on your person. The only exception is a diplomatic pouch.

Actually the IP here doesn't have to be a trademark or copyright.
It is possible to copyright a title or a word, as long as it is a creative work. The PGP key would probably best fit under the definition of trade secret, merely a private compilation of information.
Actually, you can't copyright a word or title. You can trademark a word, but only if you coin it in the first place. The IP isn't copyrighted. It's a unique identifier, a set of numbers, which identifies the server. The URL isn't copyrighted, either. URLs are registered, but that's not the same thing. In fact, anyone can register a URL, even if it contains a trademarked name. That's why some internet companies have made money by registering domain names before they are in use and then selling them back to the trademark owners.

Crap, I need to pay attention better. A brief timeline is in order.

First, the Government served a subpoena onto Boucher to produce an unencrypted copy of the disk.

Second, Boucher filed a motion to quash (remove) the subpoena. Judge Niedermeier was the magistrate who wrote the original opinion that Boucher did not have to comply as it violated his Fifth Amendment right against self-incrimination. (http://www.volokh.com/files/Boucher.pdf) Niedermeier cited the Doe case I linked to above.

Third, the government appealed to the Federal District Court, where Judge Sessions reversed Niedermeier, holding that Boucher had to comply with the subpoena. (http://volokh.com/files/BoucherDCT.1.pdf)

A few things to take from Sessions' opinion:
* The police already knew the contents of the laptop.
* Boucher had voluntarily allowed the police to inspect his laptop, prompting his arrest.
* Once an individual has voluntarily cooperated and provided access to (using the last metaphor) a safe, he cannot later refuse to cooperate with the police by locking the safe and claiming fifth amendment protection of the combination.
* The "testimony" at stake here is Boucher admitting ownership of the computer. Since this has been established without the password, and the government won't use this "testimony" to establish ownership, there's no Fifth Amendment problem.

There's certainly more to this case than meets the eye, and while I still think Niedermeier had it right, Sessions' argument does hold water.

So my apologies to Judge Niedermeier for improperly associating his opinion with this story.
But we can all agree that FeebMaster is wrong, no matter what. :D

PoliCon
03-01-2009, 09:35 PM
He's already given them the evidence.Then there is no need for him to provide them with his password then is there.

FeebMaster
03-01-2009, 09:39 PM
There is no civic duty to resist legitimate legal procedures. At best, it's a personal interest.

I disagree. Hell, I'd argue that it's the price of freedom.



Customs has a legitimate reason to inspect his laptop. Border entry is one of the few areas where you can be compelled to open anything on your person. The only exception is a diplomatic pouch.

Customs had no legitimate reason to inspect his laptop.

biccat
03-01-2009, 09:47 PM
He's already given them the evidence.

There is no civic duty to resist legitimate legal procedures. At best, it's a personal interest.

Customs has a legitimate reason to inspect his laptop. Border entry is one of the few areas where you can be compelled to open anything on your person. The only exception is a diplomatic pouch.
You're making the same argument that Sessions made. Only he made it a bit more elegantly. Boucher had already made the evidence available, the only advantage gained by Boucher providing his password is availability of the evidence, its existence and his ownership are already established.

But I still think that Niedermeier is right.


Actually, you can't copyright a word or title. You can trademark a word, but only if you coin it in the first place. The IP isn't copyrighted. It's a unique identifier, a set of numbers, which identifies the server. The URL isn't copyrighted, either. URLs are registered, but that's not the same thing. In fact, anyone can register a URL, even if it contains a trademarked name. That's why some internet companies have made money by registering domain names before they are in use and then selling them back to the trademark owners.
Actually, you can't register a trademark, at least not anymore.

Anyone who registers a trademarked term with ICANN is engaging in trademark infringement. They are trading on the goodwill of the owner of that mark in order to gain some benefit. There are some exceptions, such as if an orchard had registered "apple.com" before the computer company. This gets into a lot of interesting legal stuff, but it is far too long for forum posts.

As for trademarking a word, you can get a trademark on a word that is in normal use. You don't have to "coin" the term (called in the legal profession "secondary meaning") for it to be subject to trademark protection. The restriction is that the word cannot be generic or descriptive of the good or service that you are selling under the mark.

This is all rather academic, however, because the label of "trade secret" fits pretty well here, at least by analogy. A computer password is not generally known, not easily ascertainable, and provides an advantage - no one else can use his computer.


But we can all agree that FeebMaster is wrong, no matter what. :D
Generally that's a good position to take, but I think the case can go either way.

Odysseus
03-01-2009, 10:21 PM
I disagree. Hell, I'd argue that it's the price of freedom.
Customs had no legitimate reason to inspect his laptop.
Refusing to comply with just laws isn't freedom, it's anarchy.
Customs has the right and responsibility to inspect any item coming into the US. If they can open your mail (and they can), then they can direct you to boot up your laptop.

FeebMaster
03-01-2009, 10:24 PM
Refusing to comply with just laws isn't freedom, it's anarchy.

What about unjust laws?


Customs has the right and responsibility to inspect any item coming into the US. If they can open your mail (and they can), then they can direct you to boot up your laptop.

They shouldn't be opening people's mail either.

lacarnut
03-01-2009, 11:37 PM
What about unjust laws?



They shouldn't be opening people's mail either.

I guess YOU want to decide what laws are just and unjust. No thanks!

The perp would not be having this problem if he was not a sick perverted piece of shit.

FeebMaster
03-02-2009, 07:33 AM
I guess YOU want to decide what laws are just and unjust. No thanks!

I have no interest in dictating to you which laws you should fight to the death to resist. Ultimately, it's a decision that's up to the person who is probably going to die resisting.


The perp would not be having this problem if he was not a sick perverted piece of shit.

Allegedly.

He also wouldn't be having this problem, probably, if he had refused to boot up his laptop, although at best he'd almost certainly be looking for a new laptop. He also wouldn't have this problem if he'd just crossed the border illegally.

PoliCon
03-02-2009, 09:08 AM
I guess YOU want to decide what laws are just and unjust. No thanks!

The perp would not be having this problem if he was not a sick perverted piece of shit.

so we should assume that everyone is a sick perverted piece of shit until the prove that they are not? :confused:

FeebMaster
03-02-2009, 09:23 AM
so we should assume that everyone is a sick perverted piece of shit until the prove that they are not? :confused:

Only if the government says they are.

PoliCon
03-02-2009, 09:44 AM
Only if the government says they are.

This is the same kind of shit that helped get me out of teaching. :mad: I got tired of being told I was a child molester until I got documents from the government certifying that I'm not. :rolleyes:

Odysseus
03-03-2009, 12:28 AM
What about unjust laws?
So, you object to the laws against child molestation and possession of child pornography?

They shouldn't be opening people's mail either.
But they do. In fact, every nation in the world has the option to do it. The point is, there is no expectation of privacy at any customs entry.

I have no interest in dictating to you which laws you should fight to the death to resist. Ultimately, it's a decision that's up to the person who is probably going to die resisting.
So, people get to decide what laws they want to obey and which ones they don't? Why bother having laws, then? We can just have suggestions, which carry no penalties if you decline to follow them.

He also wouldn't be having this problem, probably, if he had refused to boot up his laptop, although at best he'd almost certainly be looking for a new laptop. He also wouldn't have this problem if he'd just crossed the border illegally.
Or, he could have just stayed outside of the US. We're not exactly looking to import pedophiles.

FeebMaster
03-03-2009, 07:45 AM
So, you object to the laws against child molestation and possession of child pornography?

The porn, yes. The molestation, no. One involves direct harm to someone. The other does not. It's one thing if you want to go after the person who originally made the porn, another entirely to charge anyone who comes into contact with it.

This particular pervert isn't being charged with molestation. In fact, there's no evidence that he has any actual child porn other than the government's assumption that because he had real adult porn and animation potentially depicting children, he must also have the real thing.


But they do. In fact, every nation in the world has the option to do it. The point is, there is no expectation of privacy at any customs entry.

There should be.


So, people get to decide what laws they want to obey and which ones they don't? Why bother having laws, then? We can just have suggestions, which carry no penalties if you decline to follow them.

People already decide which laws they want to obey and which laws they don't, just as they already decide for themselves whether it's preferable to go to jail, potentially for life, or to fight to the death.


Or, he could have just stayed outside of the US. We're not exactly looking to import pedophiles.

Certainly, that's another possibility. He could have also shared the data, encrypted, over the internet and walked through customs with a perfectly clean laptop.

Phillygirl
03-03-2009, 09:30 AM
It all depends on the circumstances which you do not know the full details of nor do I. Like I said there is probably a lot more to this story that meets the eye called evidence. Let the courts hash it out. FYI, one court ordered him to give the feds the info. If it goes to the S.C. and they uphold this decision will you still be parroting rights?

English, please.

lacarnut
03-03-2009, 12:42 PM
English, please.

If the S.C. upholds the lower court ruling forcing the perp to descrypt the laptop, will you still be parroting (repeating or imitating, especially without understanding) rights.

How is that; much clearer.

Phillygirl
03-03-2009, 01:04 PM
If the S.C. upholds the lower court ruling forcing the perp to descrypt the laptop, will you still be parroting (repeating or imitating, especially without understanding) rights.

How is that; much clearer.

I will be repeating rights? Or do you mean I will continue to argue the the 5th amendment was designed to apply to everyone, even child molesters?

I'm not certain how that is "parroting rights". Perhaps you mean that I will continue to parrot our Founding Fathers when it comes to how the Bill of Rights were to apply to all individuals (well, at least the non-slave citizens).

PoliCon
03-03-2009, 01:24 PM
If the S.C. upholds the lower court ruling forcing the perp to descrypt the laptop, will you still be parroting (repeating or imitating, especially without understanding) rights.

How is that; much clearer.

descrypt?:confused:

lacarnut
03-03-2009, 02:06 PM
I will be repeating rights? Or do you mean I will continue to argue the the 5th amendment was designed to apply to everyone, even child molesters?

I'm not certain how that is "parroting rights". Perhaps you mean that I will continue to parrot our Founding Fathers when it comes to how the Bill of Rights were to apply to all individuals (well, at least the non-slave citizens).

You have a right to not abide by a S.C. decision and they have a right to charge you with contempt.

Polly want a cracker?

Phillygirl
03-03-2009, 03:07 PM
You have a right to not abide by a S.C. decision and they have a right to charge you with contempt.

Polly want a cracker?

You haven't the first clue about how these things work, do you? It's rather fun to watch though. Carry on.

lacarnut
03-03-2009, 03:35 PM
You haven't the first clue about how these things work, do you? It's rather fun to watch though. Carry on.

Knock yourself out. You have plenty of time warming your ass up on that bar-stool when no one ask you to dance thinking up how smart you are as a lawyer. You must have some down between a case involving a child molestor and a slave (both of which you interjected).

Phillygirl
03-03-2009, 07:15 PM
Knock yourself out. You have plenty of time warming your ass up on that bar-stool when no one ask you to dance thinking up how smart you are as a lawyer. You must have some down between a case involving a child molestor and a slave (both of which you interjected).

Such hostility and fixation on the dancing, bar stool and the temperature of my derriere. Strange.

But back to the topic at hand. Do you understand the difference between arguing a legal position and simply being angry that there are bad people in the world?

lacarnut
03-03-2009, 10:08 PM
Such hostility and fixation on the dancing, bar stool and the temperature of my derriere. Strange.

But back to the topic at hand. Do you understand the difference between arguing a legal position and simply being angry that there are bad people in the world?

Don't you remember your imaginary fixation of my sitting on a bar stool? Guess you are getting old and forgetful.

Back to the topic: If the S.C. upholds the lower court's ruling, I consider the case closed. The perp will either comply or face contemt charges. If you think otherwise, knock yourself out.

lacarnut
03-03-2009, 10:12 PM
http://weblogs.newsday.com/sports/football/bob_blog/winner.jpg

Cute; I bet some middle aged yankee broad would give a million bucks to look like that. :):):)

Odysseus
03-03-2009, 10:57 PM
The porn, yes. The molestation, no. One involves direct harm to someone. The other does not. It's one thing if you want to go after the person who originally made the porn, another entirely to charge anyone who comes into contact with it.
The creation of child pornography requires the molestation of children. What part of that don't you understand?

This particular pervert isn't being charged with molestation. In fact, there's no evidence that he has any actual child porn other than the government's assumption that because he had real adult porn and animation potentially depicting children, he must also have the real thing.
The images were seen on his computer at customs.

There should be.
But there isn't. Regardless of whether or not you think that people should be allowed to bring anything that they want into the country, the law doesn't recognize that right. In fact, no nation has ever recognized that as a right.

People already decide which laws they want to obey and which laws they don't, just as they already decide for themselves whether it's preferable to go to jail, potentially for life, or to fight to the death.
You're romanticising mundane lawbreaking as somehow heroic. It isn't. The vast majority of felonies are committed, not because of principled stands against oppression, but because of unprincipled expedients that the felons prefer to honest labor and delaying gratification. Most people who decide to break laws aren't ready to fight to the death over it. In fact, the vast majority simply whine, hire lawyers and do their damnedest to weasel out of the consequences of their actions. It's a very rare law that inspires that level of opposition.

Certainly, that's another possibility. He could have also shared the data, encrypted, over the internet and walked through customs with a perfectly clean laptop.
True, but he didn't. He couldn't bear to be separated from it long enough to enter the country. What does that tell you?

FeebMaster
03-03-2009, 11:58 PM
The creation of child pornography requires the molestation of children. What part of that don't you understand?

So arrest the people who created it. You know, the ones doing the harming.


The images were seen on his computer at customs.

According to the article:


An officer opened the laptop, accessed the files without a password or passphrase, and allegedly discovered "thousands of images of adult pornography and animation depicting adult and child pornography."

So apparently not.


But there isn't. Regardless of whether or not you think that people should be allowed to bring anything that they want into the country, the law doesn't recognize that right. In fact, no nation has ever recognized that as a right.

Nations tend to suck in the rights department. Nothing new there.


You're romanticising mundane lawbreaking as somehow heroic. It isn't. The vast majority of felonies are committed, not because of principled stands against oppression, but because of unprincipled expedients that the felons prefer to honest labor and delaying gratification. Most people who decide to break laws aren't ready to fight to the death over it. In fact, the vast majority simply whine, hire lawyers and do their damnedest to weasel out of the consequences of their actions. It's a very rare law that inspires that level of opposition.

It's not a question of heroism or stands against oppression. Most people just don't care. They speed if they feel like it. They buy drugs if they want them. They sell drugs if it suits them. They download copyrighted movies and music off the internet. They download porn that may or may not meet the record keeping requirements in 18 U.S.C. 2257. They cheat on their taxes. They build a deck without getting the proper permit. The thought of government intervention into their lives rarely occurs to them until the boot lands on their neck.

Given the odds of being caught, they aren't even necessarily wrong to be so clueless. Of course, once it happens, it's generally too late to do anything about it. Also, many of them are naive enough to think they have a shot at a fair and speedy trial with competent legal representation. This is the land of the free and the home of the brave. Unjust and unconstitutional laws don't have a prayer here.


True, but he didn't. He couldn't bear to be separated from it long enough to enter the country.

Yes. No doubt he was watching it while beating off in line at customs. No wonder they caught him.


What does that tell you?

That he's not good with computers? That setting up drive encryption was faster and easier than setting up his own server? That he can't afford a second computer?

Phillygirl
03-04-2009, 09:48 AM
Don't you remember your imaginary fixation of my sitting on a bar stool? Guess you are getting old and forgetful.

Back to the topic: If the S.C. upholds the lower court's ruling, I consider the case closed. The perp will either comply or face contemt charges. If you think otherwise, knock yourself out.

I do remember the imaginary part.

Odysseus
03-05-2009, 12:01 AM
So arrest the people who created it. You know, the ones doing the harming.
In this case, the consumer of the product is as guilty as the producer. If he didn't create the demand, there'd be no supply. If you are arguing against laws banning child pornography, then you're really out there.

It's not a question of heroism or stands against oppression. Most people just don't care. They speed if they feel like it. They buy drugs if they want them. They sell drugs if it suits them. They download copyrighted movies and music off the internet. They download porn that may or may not meet the record keeping requirements in 18 U.S.C. 2257. They cheat on their taxes. They build a deck without getting the proper permit. The thought of government intervention into their lives rarely occurs to them until the boot lands on their neck.
You aren't seriously equating possession of child pornography, tax evasion and drug trafficking with building a deck on your own property, are you? Are you so far gone that you can't differentiate between legitimate functions of government and intrusive power grabs?

That he's not good with computers? That setting up drive encryption was faster and easier than setting up his own server? That he can't afford a second computer?
Let me see if I've got this straight: The guy can't figure out how to access an FTP site, but he can encrypt his hard drive so that US law enforcement can't crack it? That's a novel argument. Not a particularly compelling one, much less logical, but it does have novelty. Let me know when you have a serious point to make.

Constitutionally Speaking
03-05-2009, 04:02 AM
I just disagree on what's practical.


Perhaps.


Just call me an optimist, I still think we can turn things around.

FeebMaster
03-05-2009, 07:42 AM
In this case, the consumer of the product is as guilty as the producer.

No.


If he didn't create the demand, there'd be no supply.

Dream on.


If you are arguing against laws banning child pornography, then you're really out there.

I'd go so far to say that laws banning it are counterproductive to prosecuting the creators. You drive it underground, make it harder for the government to find it. You spend more time and energy just tracking it down than you do trying to find the people who made it.


You aren't seriously equating possession of child pornography, tax evasion and drug trafficking with building a deck on your own property, are you?

I believe I am.


Are you so far gone that you can't differentiate between legitimate functions of government and intrusive power grabs?

Apparently.


Let me see if I've got this straight: The guy can't figure out how to access an FTP site, but he can encrypt his hard drive so that US law enforcement can't crack it? That's a novel argument. Not a particularly compelling one, much less logical, but it does have novelty. Let me know when you have a serious point to make.

Encrypting a hard drive so US law enforcement can't crack it is trivial in this day and age. We're talking like 2 or 3 clicks with TrueCrypt. I doubt PGP is any harder.

Now, granted, setting up your own FTP isn't exactly rocket science either, but at the least it requires a 2nd computer. If you want it as secure as his laptop apparently is, you'd still have to setup some kind of encryption. So really, he'd be doubling his work or more.

PoliCon
03-05-2009, 09:11 AM
This is why libertarianism is impractical and will forever be marginal.

FeebMaster
03-05-2009, 11:48 AM
This is why libertarianism is impractical and will forever be marginal.

I agree.