1. Computer Encryption Cheryl Dong Naima Ritter Hayden Bottoms Jennifer Kozin Brittany James

2. Encryption: to alter using a secret code so as to be unintelligible to unauthorized parties People encrypt computers to keep files secure. To “decrypt” a computer is to render the code into plain text. To do this, a key or a password is needed. What is Encryption?

3. The Boucher Case Sebastian Boucher was crossing the Canadian border when a customs official stopped his car and asked to see his computer. On drive Z of the computer, the customs official found child pornography. Sebastian Boucher was arrested and his computer was seized. The computer was shut down, and since then, officials have not been able to access drive Z, which is encrypted by PGP (pretty good protection). It would take years to decrypt the computer. Boucher currently does not have to give his password because it is a violation of his 5 th Amendment Rights.

4. Precedence If Boucher does not have to give his password, what precedence does that set for other criminal cases involving encrypted evidence? Would you want this man to get off free just because all evidence against him was encrypted? If the case is ruled in favor of Boucher, it would create a medium of communication between criminals that cannot be monitored or used as court evidence against them!

5. The Fifth Amendment No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

6. What does the 5 th Amendment actually protect against? Under the Fifth Amendment, there is no protection for being asked to speak words for voice identification in the context of a criminal court case under the justification that what is incriminating about this task is not the actual words spoken but the physical features of the action. Similarly, what is self incriminating in the Boucher case is not the password itself, but the material that is on his computer. Boucher already waived his 5 th Amendment rights in writing during the initial search of his computer. Boucher has already incriminated himself by showing child pornography to the border guards, therefore the 5 th Amendment should not protect his password.

7. Should digital media be treated differently from other media? Documents the courts know to exist are not covered by the Fifth Amendment, digital or not, and they should have to be produced. It makes no difference that the data is digital. It still exists physically on Boucher’s computer.

8. Is the 5 th Amendment outdated? Amendment V of the United States Constitution: No person shall be required to testify against himself in a criminal case; ratified in 1791. The amendment was made originally to protect prisoners from having confessions tortured out of them. Our forefathers could not have foreseen the digital age and the amendment needs to be updated to accommodate new technology.

9. The Fourth Amendment “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The same applies to digital media. If there is a warrant and probable cause, why should it be excluded? The documents on Drive Z are essentially digitalized papers, and the Fourth Amendment needs to be adapted to modern technology as well. In the Boucher case, there is known to be child pornography on his computer so a search is warranted.

10. Summary If the courts set the precedent that criminals do not have to decrypt their computers, it creates a medium of evidence that the government cannot access. The 5 th Amendment needs to be interpreted differently in the digital age. The password itself does not incriminate Boucher, the hard evidence on his computer does. Digital media should not be treated any differently from other forms of evidence. The Fourth Amendment allows for search and seizure with probable cause.

11. References http://www.cqpress.com/incontext/constitution/images/ Scene_at_the_Signing_of_the_Constitution_of_the_U nited_States.jpg http://www.cqpress.com/incontext/constitution/images/ Scene_at_the_Signing_of_the_Constitution_of_the_U nited_States.jpg www.dnsny.com/images/comp_encrpt.jpg www.downwiththeinternet.wordpress.com http://www.volokh.com/files/Boucher.pdf http://www.washingtonpost.com/wp- dyn/content/article/2008/01/15/AR2008011503663.htm l http://www.washingtonpost.com/wp- dyn/content/article/2008/01/15/AR2008011503663.htm l http://www.rcarterpittman.org/essays/Bill_of_Rights/Fif th_Amendment.html http://www.rcarterpittman.org/essays/Bill_of_Rights/Fif th_Amendment.html http://www.slate.com/?id=2061972