Digital Metaphor and the 5th Amendment

Introduction

In Re Boucher

The “Document” Approach

Warring Metaphors

• I think this argument is very well mounted. I'm not sure that it's convincing. You need to go very far from one case, which doesn't seem to be part of any larger constellation, to the existence of a constitutional conundrum requiring a "rethinking" project. Basic rules of prudential reasoning that lawyers expect to apply in other contexts are not suspended in the presence of computers. And indeed, it seems more likely that Boucher is correctly decided on narrow facts that uncommonly arise rather than that the self-incrimination clause has failed. Plainly if you show a document to an investigator and then before his eyes drop it into a safe, you will have a tough time arguing that being required to produce the safe's combination is compulsory testimony as to control and possession, when all the investigator wants is the content of the document, being in possession of more than sufficient evidence of your control and possession already. You speak sometimes in the piece as though the issue were whether a man has a right to keep that document private. All parties are agreed that he does not: a search warrant can issue for almost any document. All that's at stake is whether being forced to give access (which the execution of any search warrant necessarily entails) is sometimes also a compulsory testimonial act.

Identity and the 5th Amendment

-- TheodoreSmith - 09 Mar 2009

Table of Contents

Introduction

The same set of challenges we have seen in the 4th Amendment – the fixation on physical metaphor and “place-y-ness” – extend to the self-incrimination provisions of the 5th Amendment. The ongoing appeal in the case of In Re Boucher (26) provides us with an excellent opportunity to examine these issues: how the changing boundaries of personal identity in a paradigm of easily transferred and stored information have outpaced the slow shifts of constitutional law.

In Re Boucher

The facts of In Re Boucher are straightforward. Boucher’s laptop was searched upon entry into the United States. The border agents found several files on the “Z” drive that appeared to be child pornography. The agents arrested Boucher and seized the laptop. When law enforcement agents later restarted the computer, the Z drive was found to be encrypted and inaccessible barring the application of a password. Boucher was subpoenaed for the password to the drive, but moved to quash on 5th Amendment grounds. Although his motion was initially granted by the Magistrate Judge hearing the issue, the motion was denied on appeal to the Vermont District Court.

The Supreme Court has held that the 5th Amendment protects only “compelled testimonial communication.”(27) The actual documents sought in cases such as Boucher rarely fall within this definition: they are often non-testimonial (i.e. evidence of child pornography), and nearly always non-compelled (created freely by the defendant). Insofar as the substance of the information sought is therefore typically not within the scope of immunity, courts have focused their 5th amendment analysis on “whether the act of producing [the information] would constitute compelled testimonial communication ... regardless of ‘the contents or nature of the thing demanded.’ ”(28)

An act of production on subpoena is by definition compelled; the scope of immunity is therefore governed by the degree to which the act is testimonial. Courts have found an act of production to be testimonial “in two situations: (1) ‘if the existence and location of the subpoenaed [documents] are unknown to the government’; or (2) where production would ‘implicitly authenticate’ the documents.” ”(29)

A Physical Metaphor

For the purposes of this essay we will focus on the first of the situations mentioned above. This first category of cases is meant to cover “fishing expeditions” – where the government serves a broad subpoena on the defendant in the hopes of uncovering incriminating evidence. The resulting act of production is testimonial, insofar as the assembly and identification of the documents required “extensive use of ‘the contents of [the defendant’s] own mind’” (30)

The District Court in Boucher found that this burden of showing knowledge of the existence and location of the documents had been met: a border agent had “viewed the contents of some of the Z drive's files,” and the Government could demonstrate the existence and location of the drive itself. Although the Court did not disagree with the Magistrate’s finding that the government had “not viewed most of the files on the Z drive, and therefore [did] not know whether most of the files on the Z drive contain[ed] incriminating material,” it found this immaterial under the facts of the case. (31)

The District Court appeared to justify its holding by framing the drive itself as the evidence to be revealed, rather than the documents within the drive. Understood thus, the drive was like a calendar that contained incriminating entries. The government did not have to know the “content” of each entry, but rather only that the calendar existed and contained potentially incriminating information. Similarly, knowledge the existence of the drive, and that some of the contents “may consist of … child pornography,” was enough to meet the existence and location requirement with the “reasonably particularity” required.(32)

The Star Chamber’s Not the Thing

Both the District Court and the Magistrate Judge struggled to find an appropriate physical analog through which to understand the abstraction of computer storage. Although one may argue that the metaphor chosen by the District Court was inapt, the mere existence of the metaphorical problem illustrates a second, more deeply seated problem with the 5th Amendment’s scope in the digital age.

As we have seen within the context of the 4th Amendment, a focus on the idiom of physical location causes problems when we then attempt to apply its ambit to information. The 5th amendment was written in the historical context of the abuses of the Star Chamber(33): to prevent a court from compelling oral statements from the accused. Although it covers written as well as oral testimony, the historical focus of the amendment was on transitory expressions. With the development of modern information technology, this focus on transitory and compelled testimony has became less important– where an incriminating comment or thought was once fleeting, it now has a potentially unlimited life in digital form; where an incriminating fact was once noted mentally, it is now far more likely that it will have a digital analog. Limiting the 5th Amendment to its historical boundaries creates a situation in which one is protected from self incrimination, but this privilege does not extend outside the boundaries of ones own mind – it becomes impossible, or at least impractical, to create an extension of ones identity shielded from the law in the same way as ones internal identity.

Conclusion

It is possible that a refusal to review the 5th Amendment in light of advances in information technology is a reasonable and measured approach – the mind, after all, is inherently private and closely linked with the dignity of the individual, while stored information has verifiable existence and is perceptible to others. Viewed from an evidentiary perspective, it may make sense to have some limitations on the former, while allowing free use of the latter. If, however, we interpret the spirit of the 5th Amendment more generally, as encompassing the right to build an zone of identity where the individual is never forced to choose between the “cruel trilemma of self-accusation, perjury or contempt”(34), we may need to decide where the boundaries of this identity should fall.

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