My Friday post on the Fifth Amendment and encryption discussing the Boucher case led to a very long and interesting comment thread, including several comments from readers who thought it clearly wrong to say that Boucher could be required to enter in the password even if no one doubted that he knew it. The basic argument was that entering in the password had a testimonial aspect to it, and the government could never compel someone to take those steps in a way that would hurt him in a criminal case — in Boucher, by leading the police back to the evidence on the hard drive.
In this post, I want to explain why I tend to disagree. It’s my understanding that if the government already knows that Boucher has the password, having him enter it in generally does not implicate the Fifth Amendment privilege. Just to be extra clear, I’m not saying that I like the law this way, or that this is my personal theory of what the Fifth Amendment should mean. Rather, I’m saying that I think this is the correct result under existing caselaw. (So if you disagree, it’s probably best to make your arguments in terms of cases, not Universal Principles of Justice.)
The key precedent here is Fisher v. United States, 425 U.S. 391 (1976), in which the Supreme Court considered whether the government could subpoena records involving the preparation of a person’s taxes by his accountant over a three year period from the suspect himself, who was suspected of tax fraud. The Court concluded that the Fifth Amendment did not bar such a subpoena, even though responding to the subpoena would indicate the person’s knowledge and control of the records and even though the government wanted to use the records to prove his guilt for tax fraud. Here’s why:
Surely the Government is in no way relying on the “truthtelling” of the taxpayer to prove the existence of or his access to the documents. 8 Wigmore