In Re Boucher: Hard Drives Make Pretty Good Law? Encryption Passphrases as Testimonial Evidence Under the Fifth Amendment

Abstract

In November 2007, a federal magistrate judge in Vermont held that a defendant could not constitutionally be compelled to enter the passphrase to his encrypted laptop hard drive because the act of entering the passphrase was testimonial. The Fifth Amendment's protection against self-incrimination applies not only to compelled incriminating testimony, but also to the act of producing evidence where the act itself would constitute an incriminating testimonial communication. Encryption such as that used by the defendant has been controversial. The widespread availability of strong cryptography software makes computer hard drive encryption attractive not only to users of child pornography, but to white collar criminals as well. This Article provides an overview of whole disk encryption and explains the applicable Fifth Amendment doctrines. It argues that extending those doctrines to the entry of encryption passphrases is necessary to protect criminal defendants' rights but does not sacrifice law enforcement's ability to fight crime. The Article concludes with practice pointers for businesses implementing encryption policies for employee computers.NOTE: This draft has not been updated since February 1, 2009, and the main case discussed herein has since been overturned on appeal. Do not rely on this draft for an accurate and comprehensive view of the pertinent litigation as of any point after that date. This draft is provided for archival and feedback purposes only.