Despite the heated arguments surrounding the case of Sebastien Boucher and the government’s efforts to obtain his password to collect evidence of his possession of kiddie porn, we suffered Boucher-interruptus when Vermont Magistrate Judge Jerome J. Niedermeier’s decision never made it up to the Circuit.
The good news is we have bad news to report. Colorado District Court Judge Robert Blackburn has issued a decision in United States v. Fricosu, raising many of the same issues presented by Boucher. The defendant’s home was searched pursuant to a warrant, and a computer seized which held encrypted files. She decided to chat about it with her husband, who was in jail on a state charge, on a recorded line, giving the government a pretty clear conversation so show that this was her computer, that she knew it was encrypted and that it contained stuff she would prefer the government not know.
So, the government subpoenaed the defendant to produce an unencrypted version of the content of the computer. For good measure, they offered her immunity for doing so.
Fricosu moved to quash, arguing that the subpoena violated her Fifth Amendment privilege against self-incrimination, demanding a testimonial act of production by compelling her to acknowledge her control over the computer and its contents. Mind you, the contents themselves are not protected, as evidence of a crime already searchable by virtue of the warrant for her home, but the contents, already in the prosecution’s hands, can’t be “interpreted” without the encryption key. This is a geeky point, and of little legal significance, but I would hate for the geeks out there to castigate me for failure to acknowledge this detail.
Judge Blackburn found, under the preponderance of evidence standard, that there was no privilege left to protect.
There is little question here but that the government knows of the existence and location of the computer’s files. The fact that it does not know the specific content of any specific documents is not a barrier to production. (Citations omitted.)
Additionally, I find and conclude that the government has met its burden to show by a preponderance of the evidence that the Toshiba Satellite M305 laptop computer belongs to Ms. Fricosu, or, in the alternative, that she was its sole or primary user, who, in any event, can access the encrypted contents of that laptop computer. The uncontroverted evidence demonstrates that Ms. Fricosu acknowledged to Whatcott during their recorded phone conversation that she owned or had such a laptop computer, the contents of which were only accessible by entry of a password.
Moreover, the government has offered Ms. Fricosu immunity, precluding it from using her act of producing the unencrypted contents of the laptop computer against her.
The court held that it was a “foregone conclusion” that the computer was hers and she had the ability to access its contents, unencrypted, thereby dissipating her 5th Amendment privilege against compelling her to engage in the testimonial act of production.
As much as I hate the outcome, under the general principle that the prosecution should not be able to make the defendant do anything to contribute to her own conviction, the decision comports with existing precedent. To prove my pain in this regard, I note that Orin Kerr at Volokh reached the same conclusion, and you know how much I hate to agree with Orin.
Though the decision is sound under existing law, it gnaws at me for two reasons. First, the general sense that the prosecution should do its dirty work on its own, and no person should be compelled to contribute to their own demise. It’s just unAmerican.
The second reason is that computers (and for that matter, iPads and iPhones and everything shiny object beginning with “i”) are analogized to common physical evidence, as has historically been the fodder of prosecutions. They aren’t the same. The contents of a computer may well hold the digitalized version of evidence, but it also holds essentially our entire thought process, a revelation into the workings of our mind as manifested in binary code. The prosecution may be entitled to the evidence, but they aren’t entitled to our every thought.
It has long struck me that, if we’re constrained to understand technology by analogy, a computer is more like a diary than anything else, a sanctum for the ideas that reveal our lives. No court would order a person to undergo a brain scan so that the prosecution could access their thoughts, assuming it could be done (and, if the growth of technology continues, may well be possible some day). Yet they can achieve much of the same access via our computers.
Much of the discussion to Orin’s post on Fricosu relates to whether the defendant can simply say “I forgot” when ordered to unencrypt the files. There are plenty of variations on this theme, discussion of the sanction imposable for her refusal to comply with the court’s order, and the aforementioned geeky argument that the government already has the evidence, just not the key needed to make it usable. While these side issues may interest some, they fail to address the core problem, that most of us feel that our computers should be sacred, beyond the reach of the government.
A continuing theme here is that the law has failed miserably to address the fundamental changes that technology has on society, behavior and privacy, and that reliance on precedent and analogy is leading us down a path where privacy will be little more than an arcane notion and a fond memory. That Judge Blackburn’s decision is sound based on existing law does little to address the question of whether existing law is sufficiently sound to maintain our rights in light of changes in technology.
Unless the law comes to grips with this, we’re in trouble, and it’s rather difficult to imagine that there are many judges (Sotomayor possibly excepted) who has a sufficient grasp of technology or the will to break free of ancient precedent upon the realization that it just doesn’t apply well anymore. In the meantime, Fricosu’s lawyer say they will appeal, and we may end up with a Circuit decision that won’t bode well for the contents of computers. So much for Pretty Good Protection.