Boucher Revisited
If I read The Volokh Conspiracy, I would’ve seen and (again) blogged about this back in February:
U.S. District Judge William K. Sessions III in Burlington handed down an opinion sort-of-reversing Magistrate Judge Jerome J. Niedermeier’s order quashing a grand jury subpoena for:
all documents, whether in electronic or paper form, reflecting any passwords used or associated with the Alienware Notebook Computer .… seized from Sebastien Boucher at the Port of Entry at Derby Line, Vermont on December 17, 2006.
I say “sort-of-reversing” because between Judge Niedermeier’s order and Judge Sessions’s opinion, the Government decided that it wanted Boucher “to produce the contents of his encrypted hard drive in an unencrypted format by opening the drive before the grand jury”, rather than produce any document reflecting a password (Sessions Opinion p. 1).
I wondered when I read Magistrate Judge Niedermeier’s opinion in 2007 why Mr. Boucher was opposing the subpoena: he shouldn’t have had any documents responsive to the subpoena; his password should have been either entirely in his mind or entirely forgotten. If the subpoena asked for something that didn’t exist, the better course, it seemed to me, would have been to tell the Government that no such documents existed. It’s not the accused’s job to tell the Government that it’s asking for the wrong thing.
Now the Government is asking for the right thing (for Mr. Boucher “to produce the contents of his encrypted hard drive in an unencrypted format by opening the drive before the grand jury”) but Judge Sessions’s analysis seems lacking.
Judge Sessions, in his opinion, talks in terms of “producing an unencrypted version of the Z drive”:
Because Boucher has no act of production privilege to refuse to provide the grand jury with an unencrypted version of the Z drive of his computer, his motion to quash the subpoena (as modified by the Government) is denied.
His analysis relied heavily on In re Grand Jury Subpoena Duces Tecum Dated Oct. 29, 1992 (United States v. Doe), 1 F.3d 87, 93 (2d Cir. 1993), which involved a subpoena requiring the production of the original of a suspect’s calendar, where the Government already had a photocopy.
That analysis would be correct (or at least closer to correct) if Mr. Boucher had in his possession an unencrypted version of the Z drive. We could take the first part of the Government’s request, and require Mr. Boucher to satisfy it by producing the unencrypted drive in his possession. But we can safely assume that he does not have such an unencrypted drive.
So any analysis should include the second part of the request: “by opening the drive before the grand jury.” This takes the subpoena out of the territory covered by In re Grand Jury Subpoena. An unencrypted version of the Z drive cannot be produced by Mr. Boucher because it does not exist. The files that the Government claims are illegal do not currently exist. The government would like Mr. Boucher to create (or recreate) an unencrypted version of the Z drive, and files containing images that it claims are illegal, by entering his password into a computer. Entering the password is a small act, but in effect it’s as if the Government in In re Grand Jury Subpoena had lost the photocopy of the diary and asked the witness to handwrite a duplicate from memory.
Sure, there are cases in which a grand jury can require someone to create something that doesn’t exist, but entering a private password into a computer is a far cry from giving a handwriting exemplar.
Law is metaphor. When we argue by analogy, we choose a metaphor; when we distinguish previous cases, we challenge the metaphor. In a novel case, the choice of metaphor can control the result. In Mr. Boucher’s case, a better metaphor than “the original of the document” for what the government sought is “the combination to an uncrackable safe”; maybe even “the receiver for an automatic weapon” or “waiver of attorney-client privilege”.
The sky is not falling—the Boucher case rests on narrow facts, and the result might have been the same if Judge Sessions had chosen a different metaphor—but the Government’s choice of metaphor here dictated the result.
I have practiced before Judge Sessions. I have no doubt that he’s extremely sharp, and he struck me as eminently fair. So maybe there’s something I’m missing, some reason, elided by Judge Sessions, that “the original of the diary” is the only metaphor that makes any sense. What do you say? Gamso? Kaiser? Tannebaum? Greenfield? Anyone?
(Boucher appealed Judge Sessions’s ruling to the Second Circuit Court of Appeals, but then moved for dismissal of his own appeal.)
About The Author
Seems like my Deconstructing Boucher post of January, 2008, discussing the act of production privilege, pretty much answered the question. As I tell my wife daily, I’m not as dumb as I look.
No, not really. You seemed happy with the “combination to a safe” metaphor when Judge Neidermeier used it. Are you happy with the “original of a diary” metaphor now? Is In re Grand Jury Subpoena Duces Tecum really persuasive authority to you? Why?
For the search-impaired: Scott’s deconstructionist post.
I don’t like the “original of a diary” any more than you do, and as much as I enjoy a good metaphor, I can understand the argument despite it rather than because of it.
What changed here was that the government gave up on the act of production privilege, the point I tried to make at great effort (to a very tough audience) earlier. I would give you a metaphor for it, but I’m fresh out. Sorry.
It’s certainly the case that legal analysis functions through something like metaphor, though more like analogy I think or maybe more like the Sesame Street question of which thing is not like the other. In any event, the question you ask commonly dictates the answer which is why getting to frame the issues and ask the questions is central to successful legal argument. All of this is a digression, of course.
But as important as asking the right question or floating the right metaphor or whatever exactly is considering whether the court is really working forwards or backwards. Maybe it’s because my legal career has been spent in West Texas and Ohio, maybe it’s different elsewhere, but for the most part I find that courts do the reasoning backwards. That is, they determine what is to happen and then choose the legal argument that gets them there. This too is a digression, but an important one. It’s central to explaining why the choice of metaphor (question/analogy) matters. You need to convince the court to see the issue through your prism.
I don’t share the court’s view that the act of production privilege doesn’t apply because the “existence and location” of the images are known and Boucher’s already produced them so there’s nothing incriminating in doing it again. Even if that’s the proper legal test, it seems far from clear to me from either of the opinions that Boucher actually demonstrated an ability to unencrypt the z drive. If he didn’t, he’d be providing proof of authentication and custody and control by producing an unencrypted version of the drive.
But it’s not an act of production, anyway. It’s an act of creation.
Let’s go a bit further. What the government is actually asking is that he manufacture a version of the drive for them. The fact that it’s easily manufactured by one who knows the passkey is neither here nor there. It’s not like asking for a handwriting exemplar because that simply requires copying. This requires a making.
Here’s my analogy. “We know/believe you once made counterfeit bills in your basement because you showed us. Now we have the press but can’t figure out how to use it, so we’re demanding that you come in and print up some 20s for the grand jury.”
I don’t think so.
Query: Anyone know why he dropped the appeal?
See, Scott? Gamso demonstrates why I asked him first.
It’s always good strategy to go for the low hanging fruit first.
There are times I actually would have documents responsive to such a query. Not that I would expect a copy of an electronic book or other random file that I pulled some random hunk of text from and then hashed would be all that helpful.
Especially since I don’t follow sentence breaks when choosing text.
It’s all varying degrees of splitting hairs, though, isn’t it? Which, I guess, is most of what the law comes down to these days.…