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United States v Boucher


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Name:
United States v Boucher

URL's to Opinion:
http://www.volokh.com/files/Boucher.pdf(external link)

  • Court:
United States District Court for the District of Vermont

  • Overview:
This case involves elements of privacy and self-incrimination with regards to the protections of the Fifth Amendment. It also involves transporting child-pornography, exceptions for search and seizure at US border entry, and Miranda rights. The digital age has introduced new dilemmas for accessing electronic evidence while adhering to the rights of the accused.


  • Facts:
Sebastien Boucher was stopped at the Port of Entry at Derby Line, Vermont on December 17, 2006 during a routine border crossing check. Officer Chris Pike found a laptop in the course of the search and found a laptop that was not password protected. Evaluation of the laptop contents revealed some 40,000 files of a pornographic nature. When agents asked Boucher if child pornography may be present, he responded that he was uncertain.

Special Agent Mark Curtis of Immigration and Customs Enforcement was asked to investigate further due to his experience and training in recognizing child pornography. This revealed a file named “2yo getting raped during diaper change” which had been accessed December 11, 2006. Boucher was read his Miranda rights which Boucher waived and agreed to cooperate with agents. The investigation continued and revealed an area designated as drive Z which contained more pornographic type files as well as a video named “preteen bondage.” This video appeared to Curtis to contain a preteen girl masturbating.

The laptop was seized and Boucher was arrested. He was later free on his own recognizance.

Mike Touchette of the Vermont Department of Corrections continued the investigation on December 29, 2006. He created a mirror image of the original. His investigation was not able to access the drive Z area due to Pretty Good Privacy (PGP) encryption and password protection. Secret Service Agent Matthew Fasvlo with experience and training in computer forensics testified before a grand jury that access to the encrypted area would be nearly impossible without the password. The grand jury issued a subpoena for Boucher to provide the appropriate access to the drive Z area.

Boucher moved to quash the subpoena on the grounds it violated his Fifth Amendment right against self-incrimination.

  • Rules/Issues:
The subpeona requesting access to the drive Z area was reviewed on the following grounds:
- entering the password is testimonial
- effect of non-viewing
- effect of exclusion from evidence
- foregone conclusion

The act of producing even unprivileged evidence can have communicative aspects itself and may be “testimonial” and entitled to Fifth Amendment protection. United States v. Doe, 465 U.S. 605, 612 (1984). (“Although the contents of a document may not be privileged, the act of producing the document may be.”).

An act is testimonial when the act entails implicit statements of fact, such as admitting that evidence exists, is authentic, or is within a suspect's control. Doe v. United States, 487 U.S. 201, 209 (1988).

A password, like a combination, is in the suspect's mind, and is therefore testimonial and beyond the reach
of the grand jury subpoena.

  • Holding:
The motion to quash the subpeona was granted.

  • Other Discusion:
The digital age has made it more difficult for investigators/prosecutors to access evidence that is obvious and within their grasp when encryption and privacy laws extend protection to the accused. This is a case where the criminal has better tools than law enforcement has to overcome the protective measures.

The investigating agents at the border could have collected findings at the time of the search to another media. Simple tools like screen shots, directory listings, and sample files would have assisted the case to a conclusion. As it stands now, the forbidden trilemma: self-incriminate, lie under oath, or finding of in contempt of court has afforded the accused additional protections beyond those imposed by the digital technologies.

  • Footnotes:

Contributors to this page: pkrits .
Page last modified on Saturday 10 of May, 2008 16:41:29 GMT by pkrits.
The content on this page is licensed under the terms of the Copyright License.

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