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Child porn suspect doesn't have to decrypt seized hard drives -- for now

Jaikumar Vijayan | June 6, 2013
A Wisconsin man ordered last month by a magistrate to decrypt several of his storage drives to let investigators inspect them for evidence of child porn this week won a last minute reprieve from a federal judge.

Either way, the case could go on for a while, Shellow said.

The court's next ruling will challenged regardless of who wins, she said. Some issues likely to be raised have few legal precedents and any ruling, therefore, is likely be vigorously challenged, she said.

Shellow predicted that the case will eventually land in the Seventh Circuit Court of Appeals, and could possibly be heard later in the U.S. Supreme Court.

"I will move heaven and earth to make sure that the war on the infinitesimal amount of child pornography that recirculates on the Internet does not eradicate the Fifth Amendment the way the war on drugs has eviscerated the Fourth Amendment," Shellow said. "This case is going to go many rounds."

A handful of courts that have heard similar cases in the past have come to different verdicts.

In 2009, for instance, a Vermont federal court ordered Canadian national Sebastien Boucher who was suspected of child pornography, to produce the decrypted contents of his laptop before a grand jury.

Like Feldman, Boucher had maintained that being forced to decrypt the drive is self-incriminatory. However, the judge in that case ruled that government was not asking him for the decryption keys per se, but only for documents whose existence and location were already known to them.

However, in a 2010 case in Michigan, federal judge ruled that a defendant, who was also involved in a child pornography investigation, could not be forced to give up his password because it would be self-incriminatory.

 

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