Judge rules PGP passphrase protected under Fifth Amendment

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 criminals.

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

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 Canada.

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, 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.

"If they're going to pirate somebody, we want it to be us rather than somebody else." -- Microsoft Business Group President Jeff Raikes
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