Two, Four, Six, Eight, We Do Not Incriminate!

The Boucher court found that the defendant could not be compelled to give his password on the grounds that giving this information would be found self-incriminatory under the Fifth Amendment. I find myself uneasy with the court’s ruling, for it seems plainly obvious that even though the information is not in a visible form before the Court, there are still plenty of details that confirm both the contents of the laptop and who has control over the data stored within the laptop.

In reference to the Court’s decision that entering the password would imply both knowledge and control over the protected content, it seems that the Court is splitting hairs. Surely simply the fact that the computer was found in the defendant’s possession – the back seat of his car – is enough to assert ownership. Further, the fact that the defendant claimed that he tried to delete images whenever he received them implies that he has some form of control of the contents of the laptop. The defendant showed that he had access to the portion of the hard drive called drive Z and expressed discomfort of this perusal. Simply the fact that a password protected a portion of the laptop implies that there is someone who controls the information, the same portion that the defendant previously showed he had access to.

Further, the Court held that unlike Doe II, the defendant would have to reveal his thoughts and contents of his mind. It seems that the defendant has already done so due to his navigation through his personal computer. He has demonstrated his knowledge of the computer’s contents by directing the detective toward s a particular file that was requested. Still, the Court holds that it is not without question that the defendant possessed the password or has access to the files. Perhaps it is not an absolute certainty, but if someone I know is carrying a laptop and doesn’t know the password to a particular portion of it, then the carrier is either a computer technician or lying through their teeth about knowing the password.

In conclusion, it seemed that the Court was too worried about the Fifth Amendment and forgot their common sense. My question for the week: is possession of a case known to contain an illegal product enough to prosecute the possessor, as I seem to think in this case, or does law enforcement need to actually show the evidence?