This page goes into the ruling in more detail.
This page is also interesting, talking about a device getting seized "indefinitely" by DHS.
I'm pretty sure that I saw an article earlier in the year about this, on slashdot, but I can't find it now. I'm a bit uncomfortable about doing a concerted search for a news article when one of the key phrases involves "child porn", for obvious reasons...
Re: chief1983, from the
ruling -
In distinguishing testimonial from non-testimonial acts, the Supreme Court has compared revealing the combination to a wall safe to surrendering the key to a strongbox. See id. at 210, n. 9; see also United States v. Hubbell, 530 U.S. 27, 43 (2000). The combination conveys the contents of one's mind; the key does not and is therefore not testimonial.1 Doe II, 487 U.S. at 210, n. 9. A password, like a combination, is in the suspect's mind, and is therefore testimonial and beyond the reach of the grand jury subpoena.
I don't quite get what the ruling is saying as to why the government's offer to not use the act of incriminating Boucher doesn't hold. It seems like the ruling is saying that because there could be additional items on the laptop that would be incriminating, besides the child porn, he can't give it up; but my understanding of similar situations is that in a similar case, the additional items would be admissible (EG you force someone to give up the key to their house to do a search for a bloody knife, and you find a bag of weed in the kitchen).
OTOH the judge might be coming at this from the perspective that, even if you tell the jury it can't regard the entry of the password as being incriminating, it's extremely probable that the jury will still make a decision based on that fact. But since, technically, you can't say that, he's leaving it unspoken for this ruling.
As the judge also says, it's equivalent to asking the defendant if he knows the password, and it reveals the contents of the defendant's mind. I think the analogy he's drawing is more akin to asking for a key that you assume that the defendant has, and asking for a key that you don't know the defendant has.
For instance, suppose someone is accused of murdering a woman's husband. Compelling to produce the key to their own house to search for the bloody knife would be fine; it's expected that somebody has the keys to their own property. Compelling them to produce the key to the woman's house would not be acceptable, because it would basically be having them admit to an affair with the woman, as long as there's no other convincing reason for them to have the key. If you could do that, you could compel people to produce whatever illegal items they have and then prosecute them based on that.
In this particular case, I think that would could be used to exonerate this from application of the Fifth would be the fact that the defendant claimed to have downloaded pornography to the encrypted partition prior to showing it to the law enforcement officers. Since Boucher already revealed that he uses the partition (after he waived his Miranda rights), it would be reasonable to assume that he also has the passphrase required to view the partition. The only reasonable argument I can see somebody making that would explain him not having the passphrase would be that he had someone else set up the encryption, and never turned the computer off, so he never needed the passphrase to view the partition.
The problem is that it really is still self-incrimination. Suppose that Boucher decided to tell the court that he had forgotten the password. There's not much they can do to prove him wrong. Putting him in that kind of situation would give him substantial motive to lie under oath and there is no evidence that can be produced that would contradict him. Though it can be (reasonably) said that Boucher encrypted the drive to restrict access, it still relies on unsubstantiated assumptions which can't be proven.
Or suppose that Boucher claims that he doesn't know the passphrase, but his dad does, and Boucher's father claims that Boucher knows the passphrase. How can you tell which one is lying without relying on the testimony of either one?
EDIT: @MP-Ryan: That's the way I remembered things as well (Boucher entered the passphrase for the customs guy). But according to the sequence of events in the ruling,
Agent Curtis did not see Boucher enter a password to access drive Z.
Overall, I get the feeling that the judge's ruling is basically: "Since we can't prove that we aren't lying, we aren't going to put you in a position where it would make a difference if you did, so that the Fifth Amendment doesn't get tarnished in the process."
But it is possible that he's guilty, and he also forgot the password. If he came up with some long, elaborate password and set it just before the trip, but didn't realize that the drive would encrypt itself when he put it back to sleep, I can see him forgetting the password by the time it came to trial. After all, he would have no motive to remember it, anyway. So him forgetting the password could be used as support for an argument that (1) He did know he had child porn (2) He did know that he could get searched at the border (3) He knew that he would be arrested if child porn was found (4) He encrypted the drive to prevent the border patrol from being able to access the child porn.
