Back in late 2007, I blogged a lot about a magistrate judge ruling in In re Boucher, a case involving a how the Fifth Amendment right against self-incrimination applies to access to encryption keys. I argued back then that the magistrate’s decision was wrong on narrow grounds: Although the Fifth Amendment normally blocked the subpoena of encryption keys, in this particular case the facts divulged by compliance with the subpoena were already known to the government and therefore not privileged under the “foregone conclusion” doctrine.
Although the 2007 ruling garnered a great deal of press attention (including articles in the Washington Post and the New York Times), it was only the ruling of a magistrate judge rather than an Article III District Judge. The government sought review of the case with an Article III District Judge (more or less an “appeal” from the ruling of the magistrate judge), and we have been waiting for a ruling from the District Court for about a year.
A few days ago, District Judge William K. Sessions III finally handed down a ruling. I have posted the opinion here: In Re Grand Jury Subpoena to Sebastien Boucher. Judge Sessions’s take was basically the same as mine in my 2007 post: He ruled that under the specific facts of this case, Boucher must decrypt the hard drive and produce to the government an unencrypted version of the drive. (Notably, the subpoena orders Boucher to produce to the government an unencrypted version of his hard drive, not to actually give the government his key.) There was no Fifth Amendment privilege because the government already knew the testimonial things that compliance with the subpoena would help show, making that a “foregone conclusion.” From the opinion:
Where the existence and location of the documents are known to the government,