Data encryption can be used for many things; not all of
which are good. Encrypting data can keep private and personal information and
files safe in the event of theft or loss of a computer or removable storage
device. However, data encryption can also make it difficult or impossible for
police and federal agencies to uncover the information needed to prosecute
Authorities are having a difficult time producing the
incriminating evidence from a defendant’s laptop computer due to the encryption
of the drive contents with Pretty Good Privacy (PGP) software. U.S. Magistrate
Judge Jerome Niedermeier has ruled that a man charged with the transportation of
child pornography on his laptop across the Canadian border has a Fifth
Amendment right not to divulge his PGP password reports News.com.
Sebastian Boucher is a Canadian born legal U.S. citizen and
on December 17, 2006 Boucher was arrested when customs agents stopped him and
searched his laptop when he and his father were crossing the border from
A customs officer says that upon examination of Boucher’s
Alienware notebook computer he found thousands of pornographic images depicting
adult and child pornography. The laptop was seized as evidence and Boucher was
arrested but the notebook wasn’t looked at again until December 26 when it was
discovered that the contents of the drive were encrypted with PGP software.
Some reports claim that Boucher had configured the PGP software to forget his
password after a certain period.
Prosecutors in the case issued a grand jury subpoena to
compel Boucher to divulge the PGP passphrase to allow prosecutors to gain
access to the alleged pornographic images. Judge Niedermeier’s ruling says that
the PGP passphrase is protected under the Fifth Amendment, which protects
defendants from having to give testimony that could incriminate them.
According to News.com,
prosecutors believe they can get around the Fifth Amendment protection by
granting immunity to the passphrase since the passphrase isn’t what a
conviction will be based on, rather the conviction will be a result of the
images unlocked by the passphrase.
Details on exactly what PGP software was used by Boucher are
unavailable. Alienware notebooks are now available that use Hitachi
Travelstar 7K200 full encrypting hard drives, but those were not available
last year so the PGP encryption used is of some other sort.