Apr 27, 2009 Protect your rights against document subpoenas by clamming up always
Computer hard drive. (Image from Pacific Northwest Laboratory’s website).
This past Saturday, we took our boy to the Thomas train fiesta at the Baltimore Railroad museum. For his peers, this is akin my excitement at the prospect of seeing the Police perform live once again.
Among the displays was a Lego model train exhibit. As interesting as the exhibit was, I wondered who these Lego train afficionados get a chance to speak with about their pastime other than their fellow club members and those who visit them when their talent is on display. It reminds me of how some brilliant engineers took the time to speak with me in depth by phone about the then-nascent direct broadcast television satellite technology — which became a reality through Direct TV — when I was doing a study of the industry for an internship in 1983. As one of the consultants at the company where I interned put it: "They must like having people outside their own companies show interest in their work, when their own spouses may not even show such an interest."
Switching gears to computer child pornography prosecutions, if I were a cop investigating such alleged crimes, I would thoroughly familiarize myself with the technology, and would try to engage my suspects in a fascinating discussion about hard drives, password protection, hardware and software, computer speed, and image quality to the point that when it came time to arrest the suspect, thus implicating Miranda, that the suspect would be delighted to waive Miranda rights in order to continue the fascinating conversation and to have someone to talk with face-to-face rather than operating in the usual shadows of anonymous online communications and image trades with other people interested in such images.
Why did Sebastien Boucher waive his Miranda rights and then even use his password to show police around the child pornography-containing Z-drive of the laptop computer they seized on his entry to the United States from Canada, where he is a citizen? Perhaps the investigators used the same techniques that I discuss above. Perhaps his accompanying father told him always to cooperate with "our friends, the cops." Perhaps they mixed such techniques with intimidation. Perhaps Boucher was happy to be dealing with investigators who speak his native French, if in fact French was being spoken.
Had Boucher clammed up, federal trial judge William Sessions, III, would not have authorized the grand jury subpoena for him to provide prosecutors with an unencrypted copy of his computer notebook’s hard drive. However, Boucher’s waiving his Miranda rights was a Pandora’s box that led the trial judge to order compliance with the subpoena, proclaiming:
"Where the existence and location of the documents are known to the government, ‘no constitutional rights are touched,’ because these matters are a ‘foregone conclusion.’ Fisher [v. U.S.], 425 U.S.  at 411 (1976). The Magistrate Judge determined that the foregone conclusion rationale did not apply, because the government has not viewed most of the files on the Z drive, and therefore does not know whether most of the files on the Z drive contain incriminating material. Second Circuit precedent, however, ‘does not require that the government be aware of the incriminatory contents of the files; it requires the government to demonstrate "with reasonable particularity that it knows of the existence and location of subpoenaed documents."’ In re Grand Jury Subpoena, 1 F.3d  at 93 [(2d Cir. 1993)]. In re Grand Jury Subpoena (Boucher), 2009 U.S. Dist. LEXIS 13006 (Feb. 19, 2009).
Boucher prevailed with the magistrate judge below, who talked of the Fifth Amendment right not to reveal one’s computer password. On appeal to District Court Judge Sessions, the prosecution fashioned its argument as not seeking a password but seeking an unencrypted copy of the hard drive of Boucher’s laptop.
Boucher filed an interlocutory appeal to the Second Circuit the day after Judge Sessions entered his opinion. The PACER online docketing system apparently is keeping not only the pleadings over the Boucher subpoena unavailable to the public, but also the court opinion itself. The online docket indicates that portions of such documents are sealed, possibly to avoid making public any alleged child pornography images. Fortunately, Judge Sessions’ opinion is available on Lexis and through ARSTechnica’s website. Jon Katz.
ADDENDUM: Thanks to Dean Boland for blogging on Judge Sessions’ Boucher opinion.
Before Judge Sessions issued his opinion, Privacy Law addressed the difference in outcomes between Boucher’s subpoena victory before the magistrate judge on the one hand, and, on the other hand, a British appellate court that found no self-incrimination violation by requiring the disclosure of a computer encryption key.