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17 January 2008, 12:05

US Government challenges encryption keys ruling

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The US federal government is seeking to overrule a decision by a Vermont judge that a suspect is protected by the Fifth Amendment from demands to hand over the keys to encrypted files on his computer.

In December 2006, Vermont citizen Sebastian Boucher was stopped while entering the USA from Canada. His laptop was examined by customs officers, and prima facie evidence of child pornography was discovered on it. However, the bulk of the laptop's contents were encrypted with PGP. Due to the nature of the suspected offence, the matter was handed to the federal authorities, who proved unable to break the encryption and subsequently demanded that Boucher divulge his encryption key or make use of it himself to decrypt the files. But on 29 November last year a Vermont judge ruled that complying with this demand would amount to self-incrimination, and that the demand therefore breaches the suspect's Fifth Amendment rights. According to the Washington Post, he commented "If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court".

In the UK this problem can no longer arise. Since October 2007, Part 3 of the Regulation of Investigatory Powers Act 2000 allows investigators to demand a suspect release either the content of encrypted evidential material or the encryption keys themselves. However, should a suspect deny possession of a key, the onus remains on the prosecution to prove beyond reasonable doubt to the contrary.


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