So, law enforcement never actually saw any images, only the names of the images. The names weren’t good, obviously, but that doesn’t mean that the images were actually child pornography. At this point Boucher hasn’t revealed anything incriminating, has he?

I don’t know. The Times article and Kerr’s article both say that the officers did view at least one video file that could be described as child pornography.

So, he’s saying that the files could be there accidentally, which is technically possible if you use a news reader and set it up to download all the images in a newsgroup at a given time. He is also saying that he deleted any files that he became aware of that were illegal. Is there anything there to incriminate him from a legal perspective?

It would depend on what the statute he was being charaged under said about intent.

A special agent who had experience and training in identifying child pornography was then called in to inspect Boucher’s computer. That inspection revealed several images of adult and animated child pornography. But when the special agent tried to click on the file with the name suggesting child pornography, he found he was unable to open it.

So, law enforcement never actually saw any images, only the names of the images. The names weren’t good, obviously, but that doesn’t mean that the images were actually child pornography. At this point Boucher hasn’t revealed anything incriminating, has he?

When asked about the file, Boucher stated that he visited various newsgroups from which he downloaded pornographic images. He conceded that some of the files might unknowingly be child porn but added that he deleted those files when he saw them.

So, he’s saying that the files could be there accidentally, which is technically possible if you use a news reader and set it up to download all the images in a newsgroup at a given time. He is also saying that he deleted any files that he became aware of that were illegal. Is there anything there to incriminate him from a legal perspective?

Now, if law enforcement gains access to those files, they can perform technical forensics on them to prove, or disprove, his story. They can only do so if they can decrypt the files and folders that are encrypted. By providing them with the password to perform the decryption he is giving them access to evidence that is potentially incriminating. That seems to violate the 5th amendment, since he has never done that in the past.

nor shall be compelled in any criminal case to be a witness against himself, except when he already said something against himself, in which case it is perfectly fine to compel him to be a witness

Given the words in the Amendment, it seems to me that a person may stop talking at any point and the State has no more Constitutional ability to compel anything. It seems to me that this would include providing a password to his encryption software.

If the State cannot make its case without compelling this guy to provide information that can be used to incriminate him, then it cannot make its case.

Does a single waiver imply subsequent waivers? Can a suspect decide at any point in the process to shut up, or is he bound to keep talking (or provide the password again) after he’s opened his mouth once?

Under the waiver law that exists, a fairly good case can be made that this guy waived his right against self-incrimination.

But does a single waiver constitute perpetual waivers? If I invite a cop into my home, does that mean he’s free to come back against my wishes?

One other thing: he showed the agent the files before he was arrested, and thus, before he was Mirandized. Once read his rights, he is now choosing to exercise them. Does the timeline matter to you?

No, because there was no probable cause to arrest him until he showed them the incriminating files.

These are the facts:

1. He acknowledged to law enforcement officers that the computer was his. Under the Fifth Amendment he could have refused to answer.

2. He accessed encrypted files, presumably by using the password and allowed the l.e.o’s to look at them.

It’s a fairly standard rule that the privilege against self-incrimination can be voluntarily waived and, inexplicably, criminal suspects often do it in situations where the smartest thing to do would be to shut the heck up.

Under the waiver law that exists, a fairly good case can be made that this guy waived his right against self-incrimination.

I cannot agree with you.

Ownership is irrelevant to the question of self-incrimination. Ownership of the computer can be established by matching the serial code of the computer against manufacturer sales records. Plus, it was in his possession, and he attested that it was his.

Imagine I’m suspected of a crime and I have a conversation with a police officer wherein I reveal information that indicates I may be guilty, but when asked later, he can’t remember just what I said and has no tangible record of the conversation. The court wants to use this information to prosecute me, but because he cannot remember the details, the court has issued a subpoena requiring me to restate what I originally said for the record.

Must I repeat the conversation and incriminate myself?

I don’t understand how you’ve come to the conclusion that certain factors, like him having previously accessed the files, now causes him to forfeit his right to not incriminate himself.

One other thing: he showed the agent the files before he was arrested, and thus, before he was Mirandized. Once read his rights, he is now choosing to exercise them. Does the timeline matter to you?