More on Boucher

Scott Greenfield writes to “deconstruct” (whatever that means) the Boucher confusion on password and privilege.

Scott and Orin Kerr and Gideon all presumed that Mr. Boucher had input the password at the border when agents asked to see what was on the computer. But the Boucher opinion doesn’t actually say that Mr. Boucher input his password at the border. In fact, “Agent Curtis did not see Boucher enter a password to access drive Z.”

Scott’s reasoning, given in a comment to the “deconstructing” post, for his assumption that Mr. Boucher had input the password at the border is this: “It strikes me as hard to figure out how the border guards found the original kiddie porn file if he hadn’t input the password in the first instance.”

I’d like to propose two plausible explanations.

First, drive Z may already have been decrypted and mounted when Mr. Boucher woke his computer from sleep at the crossing. After seeing the suspect images, according to Magistrate Judge Niedermeier’s opinion, “Agent Curtis arrested Boucher. He then seized the laptop, after shutting it down.” This would have triggered the encryption software’s unmount of drive Z.

Second (Scott, bear with me, I’m thinking like an actual criminal-defense lawyer) Agent Curtis may not have found a kiddie porn file on the computer. He might not have seen the contents of drive Z at all. He could be making up some or all of this story as a pretext to find out what is on drive Z. (Why, then, would Mr. Boucher refuse to open drive Z for the government? Because whatever the contents of drive Z, they none of the Government’s damn business.)

That dispenses with what Scott calls “Orin’s nit-picking on one fact,” but how does it affect the analysis?

Scot thinks that one fact is important:

The difference is that each new question, new room searched, new act of sex (if one is inclined to follow Bennett’s lead), is an independent act and hence entitled to independent protection. The password demanded from Boucher is not a new bit of information, but the same bit that has already been provided. They just need it again.

That’s a distinction without a difference. If Magistrate Judge Niedermeier is right that this case poses a Fifth Amendment question, it doesn’t matter whether Mr. Boucher had answered the government’s question before.

The government can’t compel an accused to answer its questions again any more than it could have compelled him to answer its questions the first time. If an accused confesses at the police station, he’s not waiving his right to remain silent at trial. The government can’t force him to answer the same questions at trial that he answered before. And if the government does force him to answer the questions, then it can’t make either direct or derivative use of the answers against him.

If Mr. Boucher had not moved to quash the subpoena, or if the magistrate judge had denied the motion to quash, he could have taken the Fifth before the Grand Jury. Then the government could have given him immunity (technically or practically [by getting Judge Niedermeier to order him to answer the question]) and forced him to answer the question or go to jail for contempt (which might be less onerous than going to prison for possession of child pornography). If he had then answered the question, his answer would have been compelled, and the government couldn’t use the answer against him directly or indirectly.

If Mr. Boucher had been compelled to provide his password and Agent Curtis became unavailable for trial, the only evidence the government would then have of the contents of the hard drive would have been derived from Mr. Boucher’s compelled testimony, and would therefore have been inadmissible.

The only way the government wins this one is if the contents of Mr. Boucher’s brain were never protected by the Fifth Amendment.

0 responses to “More on Boucher”

  1. One problem with the theory: It wasn’t a grand jury subpoena, but a subpoena for the password. So there was no 5th to take.

    Nor in fact did Boucher have to tell them the password, or input the password. His attorney could have done so. Again, it was the act of production.

    As far as what happened at the border is concerned, that was up to his attorney to argue if it never happened. As he apparently didn’t dispute these events, we need to take them as accurate or this becomes total fiction and any discussion further discussion or understanding of the case is worthless.

    The one thing that should have happened, and didn’t, is that Judge Neidermeier never discussed the issue that Orin raised. Had he done so, this discussion might be entirely different. But this omission leaves it up in the air.

  2. From the opinion: “The grand jury has
    subpoenaed Boucher to enter a password to allow access to the files on the computer.”

    That sounds like a grand jury subpoena to me, if it is anything (as far as I can tell, a grand jury has no authority to order one do anything other than appear to testify and bring things).

    Having been served with a subpoena, Mr. Boucher could have a) complied; b) refused to comply (forcing the government to take him to court to be ordered to comply, where he could invoke the Fifth and the judge could rule on it); or c) filed a motion to quash.

    That Boucher could have “told” the password by typing it into a computer held by the government or by having his lawyer type it in, is irrelevant if you agree with Mag Judge Niedermeier that the act of production was testimonial. That an accused could tell his lawyer the answers to to pass on to the grand jury doesn’t mean he must.

    Similarly, if you agree that the act of production is testimonial, then Niedermeier’s opinion is right, whether Boucher input the password at the border or not.

    You and Orin are on a rabbit trail. Niedermeier didn’t need to discuss it because there was no evidence that Boucher input the password at the border.

    Do you contend that somehow the act of production becomes less testimonial if it was a repetition of an earlier act of production? Because Orin’s “issue” is not really an issue unless Niedermeier is wrong about entering the password being testimonial — unless this doesn’t fall within the Fifth Amendment’s purview.

  3. Let me rephrase, it was not a subpoena to give testimony before the grand jury, as you suggested, but a subpoena for evidence returnable before the grand jury. As you know, the feds must make a subpoena returnable somewhere. The grand jury is merely the technical body before whom the subpoena is returnable. I would have thought you would “get” the shorthand, but from now on I will spell it out at length.

    Finally, you are beginning to understand the difference between the “act of production” privilege and statement privilege. Now, you can discuss the significance of the decision in its proper context, rather than Miranda as you and Gid were doing.

    I don’t disagree with Neidermeier at all that the act of production is testimonial. I’ve had similar situations and have argued this point zealously in the past. My purpose in “deconstructing” (I really like the word) was to try to explain that you and Gid were writing in terms of statements rather than the “act of production,” which applies to the turnover of evidence rather than testimoy. They involve different concepts, and any discussion of Boucher requires an understanding of the more obscure concept of the “act of production” privilege.

    The significance of Orin’s point is that Neidermeier didn’t address the issue (something happened to permit access/deny subsequent access), which leaves the decision exposed, something you never want to see in federal court, given its disinclination to hold for the defense and such a novel ruling. We can disagree with Orin, but that doesn’t make his point worthless.

    Whether his view will prevail has yet to be seen, and your point that Boucher can withdraw his waiver and assert the 5th at will may well be the ultimate decision. But it’s unfortunate that Neidermeyer didn’t say so.

    Bear in mind that the purpose of the government’s exercise here is not to obtain the password per se, but to obtain the kiddie porn files (which are not privileged under any circumstances) that would be accesed via the password. They offered to grant use immunity to Boucher to produce the password, but Neidermeier that the grant of immunity would also provide derivative use immunity, thereby immunizing the computer content as well, under Hubbell. This extends the act of prodution privilege to the derivative use, which is another huge victory for the defendant as it precludes the government’s primary weapon to get around the privilege, limited use immunity.

    By the way, part of the problem discussing this in you comments section, with this tiny box, is that it is too complicated to do in small spurts, which is why I end up trying to use short statements to explain complex theories that really require more depth than can be provided here. Better we should discuss this through normal posts than in the comments section.

  4. Scott,

    You can expand the comment box. Click and drag on the little diagonal lines in the lower right-hand corner.

    Pretty wizzy, huh?

    You’re right about the subpoena, and Mag Judge Niedermeier is wrong: it was for Boucher to “provide all documents, whether in electronic or
    paper form, reflecting any passwords used or
    associated with the Alienware Notebook Computer,
    Model D9T, Serial No. NKD900TA5L00859, seized from
    Sebastien Boucher at the Port of Entry at Derby
    Line, Vermont on December 17, 2006.” If Mr. Boucher has a document reflecting the password to drive Z, he is a very great fool.

    In the context of waiver, I believe that the distinction between a statement and an act of production makes no difference. I still contend that if you agree that the Fifth applies (whether to a classic statement or to an act of production) a waiver once is not a waiver forever.

    Of course immunity would preclude derivative use, as I said twice in my post: that’s because the Fifth Amendment applies. There isn’t a different Fifth Amendment for acts of production than for statements.

  5. I tried that wizzy thing and it’s not working for me. But then, you know how good I am with computer stuff.

    I’ve posted about this again over here
    because it’s so much easier to do it this way.

    You are of course right that there isn’t “isn’t a different Fifth Amendment for acts of production than for statements.” In fact, the 5th never mentions either. It’s about being compelled to be a witness against oneself.” How one would be a witness is never mentioned.

    I have no issue with your outcome, and agree with it. My point, which I’ve clearly failed to make clear despite my sincere efforts to explain it, is that the analysis for statements under the 5th is different that non-statement testimonial evidence.

    Why Boucher, in particular, is important is that it involves an issue that may well become far more common in the future, computer passwords, and we need both good law on the subject as well (Niedemeier, unfortunately, is only a Magistrate Judge, so he carries the least weight of anyone in the federal system) as a clear analysis to address it when it’s our client’s butt on the line.

    In case I’ve been unclear yet again, winning these points will require that criminal defense lawyers understand, and take, the correct path to argue the “act-of-production” privilege rather than argue about statements. The concept is different. The caselaw is different. The outcomes are different. Do we want to just continue arguing the same old stuff, or recognize the arguments that will succeed in winning the case and getting judges to make good caselaw?

    By the way, my verdict is that you win the point and Orin loses, although I don’t quite endorse the path you took to get there.

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