The Fifth Amendment and Sebastien Boucher: Beyond Knee-Jerk Response

February 27, 2009

In December of 2006, Sebastien Boucher was crossing the US border when he was stopped and his laptop was reviewed by ICE officials.   The laptop was in his backseat and, according to documents, the drive containing the child pornography was accessible without requiring a password.

Mr. Boucher was Mirandized, but waived his rights and continued to talk to the agent.  During this conversation Mr. Boucher told the agent that he sometimes accidentally downloaded child pornography but would then delete the files when he realized what they were.  The agent requested that Mr. Boucher show him where he stored the files that he downloaded and Mr. Boucher directed him to a drive “Z”.

The agent continued to search the laptop and found several more instances of child pornography.  Mr. Boucher was subsequently arrested and the laptop seized (it was shutdown).

Nine days later a forensic bit image was made of the drive and the drive “Z” was found to be encrypted by PGP, and the content unaccessible without the encryption key which, curiously enough, Mr. Boucher has refused to turn over.

In November 2007 Judge Jerome J. Niedermeier granted Sebastien Boucher’s motion to quash the subpoena directing him to turn over his encryption key for the drive, citing his fifth amendment rights.

An appeal was filed and U.S. District Judge William Sessions in Vermont ruled this week that Mr. Boucher does not have a fifth amendment right to keep the files encrypted.

What motivates me most to write about this case is the knee-jerk response that will surely follow by those that only read news releases and not the actual filings in the case.  Both judges have raised some fascinating issues regarding the fifth amendment and this specific case, and both the granting of the motion to quash and the subsequent reversal hinged on specific facts in this case, and NOT a blanket decision as some blogs will have you believe.

Judge Niedermeier weighed issues regarding compulsion to testify (subpoena) and the various components that make up a valid fifth amendment argument. In pondering these points the judge notes:

Both parties agree that the contents of the laptop do not enjoy Fifth Amendment
protection as the contents were voluntarily prepared and are not testimonial. See id. at 409-10 (holding previously created work documents not privileged under the Fifth Amendment). Also, the government concedes that it cannot compel Boucher to disclose the password to the grand jury because the disclosure would be testimonial. The question remains whether entry of the password, giving the government access to drive Z, would be testimonial and therefore privileged.

The state evidently agreed to “not use the production of the password against Boucher.”  In so doing the state felt it would remove the testimonial aspect of entering the password.  Judge Niedermeier rejected this outright, citing United States v. Hubbell, 530 U.S. 27 (2000).

In rejecting further arguments, Judge Niedermeier pointed out that the password was something in Boucher’s mind, and further stated:

This information is unlike a document, to which the foregone conclusion doctrine usually applies, and unlike any physical evidence the government could already know of. It is pure testimonial production rather than physical evidence having testimonial aspects. Compelling Boucher to produce the password compels him to display the contents of his mind to incriminate himself.

In his reversal, Judge Sessions notes that neither side questions the fact that “the contents of the laptop were voluntarily prepared or compiled and are not testimonial, and therefore do not enjoy Fifth Amendment protection.”, but notes that the root of the issue is the production of the password that in effect causes the accused to “‘disclose the contents of his own mind’”.

He also mentions the “compelling” aspect of the subpoena and notes that there are two scenarios under which the act of production in response to a subpoena may communicate incriminating facts:

(1) ‘if the existence and location of the subpoenaed papers are unknown to the government’; or (2) where production would ‘implicitly authenticate’ the documents.” Id. (quoting United States v. Fox, 721 F.2d 32, 36 (2d Cir.1983)).

Drawing from this the judge concludes that because Boucher already let the Government see the drive and the contents (unencrypted) and because the Government does not require Boucher’s production of the unencrypted drive to link him to the files on his computer, then the production is not considered incriminating and so the fifth amendment protection is not valid.

I have to say that without reading the opinions I would assume that because Mr. Boucher was Mirandized, willingly volunteered information regarding the existence and contents of the drive (prior to shutdown and encryption) and willingly allowed a Government agent to browse his drive I would have assumed that he had rung a bell that could not be unrung.

[  Copies of the opinions will be uploaded soon]



Subpoena Duces Tecum – Or Not?

January 13, 2009

Any expert that has had to respond to a subpoena duces tecum is likely to find this interesting.  I am not convinced as an expert that I would like to push this line, though.  Thoughts?

——————————————————————————————————————————————

In re Teleglobe Communications Corp., 2008
Category – Production, Spoliation
WL 3198875
( Bankr. D. Del. Aug. 7, 2008 )

Background:  Defendants’ motion to exclude testimony of the plaintiff’s expert as a sanction for the alleged spoliation of information considered in forming their opinions is denied.  The court found that Rule 26(a)(2)(B) does not require the plaintiffs’ experts produce all drafts of their reports.

In addition, the court rejected the notion that draft reports fall into the category of data or information “considered” by the expert, which must be produced:

“The expert does not really ‘consider’ prior drafts in forming his opinion; the prior drafts are simply preliminary iterations of his opinion.  Rather than ‘consider’ his prior thoughts and statements, in editing the report the expert is considering the underlying data which forms the basis of the revisions.”

The court recognized that the Plaintiff’s experts did not destroy any documents, they simply made corrections to their reports and failed to save the drafts.


Quon v. Arch Wireless Lesson: Pay Attention to Policy and Procedure

July 9, 2008

Case: Quon v. Arch Wireless

Case Link:  0755282 Quon v. Arch Wireless Opinion

Editorial:

Much is being made about this case and the supposed impact Quon v Arch Wireless has on the ability for employers to review employee communications. I am a bit surprised by the reaction to the case, and it makes me wonder if the people responding to this case have actually read the opinion.

The Court’s opinion is actually very well considered and very focused in scope.  I tend to file this one under the failure of an organization to properly maintain, communicate and apply policy and procedure consistently. When I read the Court’s opinion I came away with the very distinct impression that if Ontario had done these things properly there would have been no case.

Having said that, I think this case is worthy of notice because of the illustration it gives corporate (and other) entities of the need for solid policy and procedure. In addition there were several cases relied upon (in the “Resources” section) that provide an instructive backdrop to this opinion.

Summary:

The Ontario police department ordered a review of text messages sent and received by one of its officers.

The text messages were ordered from Arch Wireless Operating Company – a third party provider contracted to carry the text messages.

The review was ordered to determine if pagers were being used for work related usage only.

The review of Quon’s transmissions stemmed from overages that incurred cost to the department. The review was ordered to determine if the pager plan needed to be increased because work related usage had increased.

The City had policy and procedure governing appropriate use of computers and “associated equipment” but had no specific policy directed at wireless pager communication.

There were conflicting recollections as to when, how and if notification that the pager transmissions were subject to review had been made.

The department could not access the text messages themselves, but rather through a contact at Arch Wireless.

It was found that many of the messages sent by Quon were sexually explicit and not work related.

Quon had gone over the limit three or four times before the review was done. Each time he simply paid the overage charge and no review of text messages was performed.

Issues:

The court further considered whether the rights of not just the officer (Quon) but also the rights of those he texted had been violated.

At issue was the reasonable-ness of the review conducted (was it just to determine misconduct, or was it to determine a need to expand the service) as well as the role that the wireless carrier played (ECS or RCS) and whether that violated the Stored Communications Act by turning over the messages to its subscriber (the City).

While the reason for the review was to be considered the methods to perform that review were also at issue.

Also at Issue was whether proper notification had been given that the communications could be reviewed.

The Court considered whether Fourth amendment rights were violated in light of the “informal” policy the department had towards text messaging.

Interesting Points:

Had the department simply used the “To and From” in their review there would likely have been no problem.

If there had been a more explicit policy to inform the employee that Text messages had no reasonable expectation of privacy there likely would have been no grounds for Quon’s claims.

Part of the policy issue was related to inconsistent application of that policy – There was an expectation that if the overages were paid that there would be no review. Quon had exceeded the limit three or four times and had paid for the overages and there was no review.

The court found that Fourth Amendment privacy rights had been violated. This was because the search, while reasonable in its purpose (to determine whether the business plan needed to be increased) was not reasonable in its scope. The Court found that there were many other methods that could have been used that would not have violated Quon’s expectation of privacy.

Resources:

Stored Communications Act, 18 U.S.C. 2701-2711 (1986)

Theofel v. Farey-Jones, 359 F.3d 1066, 1070 (9th Cir. 2004)

United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008)

United States v. Heckencamp, 482 F.3d 1142, 1146-47 (9th Cir. 2007)