Can the state compel a suspect to provide access to encrypted files on the suspect's computer? For example, if the police suspect that I'm running a Ponzi scheme, but I've got all my business records encrypted, can the state require me to produce an unencrypted version of the records? It's an important question because more and more computer users are using encryption software -- and there's encryption software that is available for free on the internet, yet is so robust that the federal government's best codebreakers and hackers can't beat it. A federal district judge in Vermont recently addressed this issue in In re Grand Jury Supoena to Boucher, 2009 WL 424718 (D. Vt., Feb. 19, 2009). In December 2006, Sebastien Boucher crossed from Canada into the United States. Officers at the border decided to search Boucher's car. (The documents that I've seen don't say why, but officers generally don't need any level of suspicion to conduct searches at the border.) A laptop was in the car, and the officers searched the laptop, finding files suggesting that Boucher might be interested in child pornography. Boucher said he was unsure whether his computer contained child pornography. The officers read Boucher his Miranda rights, which he waived, and Boucher said that he downloaded pornography, that the downloads sometimes included child pornography, and that he deleted the child pornography as soon as he recognized it. Boucher showed the officers the Z drive on his computer, which was where the pornography was stored, and the [...]
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