WASHINGTON — The federal government is asking a U.S. District Court in Vermont to order a man to type a password to unlock files on his computer, despite his claim that doing so would constitute self-incrimination.
The case, believed to be the first of its kind to reach this level, raises a digital-age issue about how to balance privacy and civil liberties against the government’s responsibility to protect the public.
The case, which involves suspected possession of child pornography, comes as more Americans turn to encryption to protect the privacy and security of files on their laptops and thumb drives. FBI and Justice Department officials have said that encryption is allowing terrorists and criminals to communicate covertly.
On Nov. 29, Magistrate Judge Jerome Niedermeier ruled that compelling Sebastien Boucher, a 30- year-old drywall installer who lives in Vermont, to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination.
Boucher had been stopped at the Canadian border, where a customs agent observed that files on his computer had titles that implied child pornography. The laptop was seized, but the encrypted files could not be opened.
The government has appealed, and the case is under grand jury investigation, said Boucher’s attorney, James Boudreau of Boston.
The ruling is already prompting controversy.
“The consequence of this decision being upheld is that the government would have to find other methods to get this information,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center. “But that’s . . . what the Fifth Amendment is intended to protect.”
But Mark Rasch, a privacy and technology expert with FTI Consulting and a former federal prosecutor, said the ruling was “dangerous” for law enforcement.
“You’re going to see drug dealers and pedophiles encrypting their documents, secure in the knowledge that the police can’t get at them,” he said.
