Computers, Privacy & the Constitution

Digital Metaphor and the 5th Amendment

-- TheodoreSmith - 31 May 2009

Table of Contents


Although ontological questions in law are by no means limited to issues surrounding technology, the ephemeral nature of digital information presents the courts with a unique challenge. The ongoing appeal in the case of In Re Boucher (1) provides an excellent opportunity to examine the potentially conflicting metaphors used by the judiciary in addressing electronic data and the law.

In Re Boucher

The facts of In Re Boucher are straightforward. Border agents found several files suggestive of child pornography on Boucher’s laptop. Boucher was arrested and his laptop seized; however, when law enforcement agents later restarted the computer, the hard 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 initially granted by a Magistrate, this motion was denied on appeal to the Vermont District Court.

The Supreme Court has held that the 5th Amendment protects only “compelled testimonial communication.”(2) Insofar as the actual documents at issue in most cases are non-testimonial, courts have focused their analysis on “whether the act of producing [the information] would constitute compelled testimonial communication ... regardless of ‘the contents or nature of the thing demanded.’ ”(3) 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.”(4)

The “Document” Approach

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 requires “extensive use of ‘the contents of [the defendant’s] own mind’” (5)

The District Court in Boucher found that the government’s 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 … drive's files,” and the Government could demonstrate the existence and location of the drive itself. Although the Court agreed with the assertion that the government had “not viewed most of the files on the … drive, and therefore [did] not know whether most of the files on the … drive contain[ed] incriminating material,” it found this immaterial under the facts of the case. (6)

The District Court appeared to justify its holding by framing the drive itself as the evidence to be revealed, rather than the electronic files within the drive. Understood thus, the drive was a single document that contained incriminating entries. The government did not have to know the “content” of each entry, but rather only that the ‘document’ existed and contained incriminating information. Knowledge of the existence of the drive, and that some of the contents “[might] consist of … child pornography,” was enough to meet the existence and location requirement with the “reasonabl[e] particularity” required.(7)

Warring Metaphors

Although the “document” metaphor may appear reasonable within the facts of Boucher, it presents a number of difficult questions when applied more broadly. If each computer file is, metaphorically, merely an entry in a master document, it is not at all clear what status each of these “entries” has within the context of the Fifth Amendment. Using the document metaphor, a court may require a defendant to produce an unencrypted hard-drive with only limited knowledge of the contents – forcing the defendant to take an incriminating “document” out of a safe. If the drive is merely a document, however, orders directed at individual computer files become problematic: an order to decrypt a piece of data becomes conceptually similar to a order to aid in the interpretation of an incriminating entry on a log or calendar; a request to give the location of a hidden file appears equivalent to a request to show what parts of a document are pertinent to an investigation. If the court is metaphorically consistent, it begins to lose the ability to treat individual files as documents for production.

A court may preserve the ability to treat computer files as individual documents by relying on an alternate metaphor – a paradigm where the hard-drive represents a filing cabinet, and the files represent documents within. This metaphor allows the court to demand access to each file as they would a physical document: files separately encrypted or hidden become appropriate targets for production. The drawback to this metaphor, from the court’s perspective, is that it limits the ability to demand access to an entire drive. Just as the reasonable particularity requirement blocks a request for all documents within a safe based on knowledge of a single incriminating paper, a court such as Boucher would be limited to requests for files of which it had specific knowledge.


It is very unlikely that the judiciary will be troubled enough by these issues to develop a consistent doctrine governing the ontology of electronic documents. As in Boucher, it is far more probable that each court will simply seize on a metaphor that is expedient in the circumstances of the case: treating the hard-drive as a document when requiring production of an unencrypted drive and treating a computer file as a document when requiring production of a specific piece of digital information. Although this ad hoc approach to electronic data does simplify the issues involved for a non-technical court, it has the potential to substantially erode defendants’ Fifth Amendment protections. Insofar as the metaphor is allowed to shift from case to case, the government gains the ability to perform exactly the kind of “fishing expedition” currently barred by constitutional doctrine, without sacrificing specificity: a defendant may be required to produce an entire hard drive based on the government’s knowledge of a single piece of information, even while being forced to locate and produce individual instances of incriminating digital files.



1 : In re Boucher, Slip Copy, 2009 WL 424718, *3 (D.Vt. 2009).

2 : Fisher v. United States, 425 U.S. 391, 409 (1976)

3 : In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992 (United States v. Doe), 1 F.3d 87, 93 (2d Cir. 1993).

4 : Id. (quoting United States v. Fox, 721 F.2d 32, 36 (2d Cir. 1983))

5 : U.S. v. Hubbell, 530 U.S. 27, 43 (2000).

6 : In re Boucher, Slip Copy, 2009 WL 424718, *3 (D.Vt. 2009).

7 : Id.


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r5 - 05 Jan 2010 - 22:31:18 - IanSullivan
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