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Transcript

Friday, January 25, 2008

BOB GARFIELD:
And I'm Bob Garfield. Many of us rely on hard drives as if they were annexes to our brains, bytes standing in for neurons to preserve information and thoughts and, perhaps, even secrets that would otherwise be beyond our capacity to recall.

Or maybe the analogy is wrong. Maybe our computer hard drives aren't extensions of our minds but more like stacks of filing cabinets. It’s an important distinction because it concerns the ability of government to demand the contents of our computer memories.

A judge in a federal district court in California ruled that hard drives serve as extensions of our own minds and therefore cannot be searched without just cause. In a much different case, a Vermont judge ruled a defendant did not have to turn over his password to authorities who wanted to inspect his encrypted hard drive for child pornography. To compel him to speak the password out loud, the judge decided, would violate his Fifth Amendment protection from self-incrimination.

There are a batch of cases across the country that each, in its way, tries to wade into the murky waters of what protections, if any, are afforded to our data. Adam Liptak of The New York Times has been following these stories, and he joins us now. Adam, welcome back to OTM.
ADAM LIPTAK:
Thank you, Bob.
BOB GARFIELD:
Let's start with the case of Sebastien Boucher. A judge ruled that he does not have to turn over his password to his encryption program, and that judge used the analogy of the difference between a safe with a key and a safe with a combination lock. What was he talking about?
ADAM LIPTAK:
Well, the law has always drawn a distinction between objects and what’s in your brain. And even though the key to a lock and a series of numbers that’s the combination to a combination lock are functionally the same thing, the law draws a distinction and says that under the Fifth Amendment you can't be compelled to disclose what’s in your brain if it’s going to hurt you.
BOB GARFIELD:
Now, with the proper search warrant, of course, the police, if they wanted to, could blow the safe but they can't force you to simply say the combination aloud.
ADAM LIPTAK:
Yeah. And one sidelight that’s sort of interesting here is that encryption programs, even relatively easily obtainable ones, are so strong that the government can't crack them. Who knew?

BOB GARFIELD:
[LAUGHS] Yeah. Who knew indeed? And that is one of the reasons the government says it’s very important for it to be able to demand passwords because otherwise drug dealers and terrorists and other criminals would really have to take off-the-shelf software and encrypt all their data.

Governments are always seeking new tools for police, but has that been successful in the past as an argument into eroding our protections from police search and seizure?
ADAM LIPTAK:
The fact that life is made hard for the cops is not a reason to do away with the Fifth Amendment or the Fourth Amendment, most courts say. Although these cases all arise in this funny setting. All of these guys had their computers inspected as they were crossing the American border.

And another kind of who-knew point is at the border you really have no rights. At the border, just as they can rummage through your luggage and look at your dirty underwear, the government can rummage through what’s on your computer. And these days what’s on your computer, as you were suggesting at the beginning Bob, is just about everything about you. So the border turns out to be a privacy-free zone.
BOB GARFIELD:
I'm wondering whether new law has to be written to accommodate the difference between going through your hard drive, which is just a vast storage area with so much personal information about you, including medical records, possibly, and who knows what all -
ADAM LIPTAK:
Confidential sources.
BOB GARFIELD:
[LAUGHS] – and, you know, a thousand notebooks that you may be carrying in a steamer trunk. The government’s always been able to go through the notebooks. But is there something fundamentally different about data stored on a hard drive and the data that you may record by hand?
ADAM LIPTAK:
The appeals court seemed to say, no, there isn't.
BOB GARFIELD:
Do you have any sense that individual judges’ lack of computer literacy might have an effect on how they view what analogy should be used?
ADAM LIPTAK:
I think that appeals court judges are older, don't much work in the digital world. I was having lunch the other day with two appeals court judges here in New York who told me that when they wanted to communicate with another judge in the court, they faxed a memo over. I said, does anyone use email? He goes, no, no, no. Email is too modern for us.

There's just not an understanding that, in a way, what we carry around on our digital devices these days is like a diary times a million.

At the same time, in a way, they're not wrong. It’s just, it’s like the old world except so much more. And is there some point in which the so much more crosses the line and becomes different in kind? And that’s a hard question for the law.
BOB GARFIELD:
Now, that appeals court that said there’s no difference between ordinary notebooks and possessions and what’s in your computer, would that give the government, for example, license to routinely download everybody’s hard drive at the border and sift through it at their leisure on just fishing expeditions?
ADAM LIPTAK:
That is the key question. And what the Electronic Frontier Foundation, a civil liberties group, says, is that this is a way of sort of after-the-fact complete electronic surveillance. You just make a mirror image of everybody’s computer as it comes over the border.

And that’s not crazy talk. It’s not wholly hypothetical. A quite neutral organization, called the Association of Corporate Travel Executives, say they have from their membership had reports of computers being held for a week or so. You show up at the border, they take your computer and they mail it back to you. And in the meantime they've made a mirror image of it.
BOB GARFIELD:
The sitting Supreme Court has taken a very hard line against individual freedoms in the case of search and seizure. I wonder if there’s anything the court has done to sort of tip its hand as to how it might rule, almost certainly will rule, eventually, in one of these cases?
ADAM LIPTAK:
Well, you've got a pretty good idea of where they're going by the fact that the appeals court judges really have no sympathy for the argument that your computer’s any different from your suitcase.

And my best guess is that, at least at the border, the U.S. Supreme Court will follow all of these other judges in saying that you carry your computer with you at your own risk.
BOB GARFIELD:
Does that mean it’s time for Congress to step in to head the Supreme Court off at the pass?
ADAM LIPTAK:
It’s possible that Congress might want to do that, although, you know, the standard response, the argument closer is, wait a second. We're talking about people with child pornography on their computers, and to catch them it’s okay to give up all of our other privacy.

Because child pornography is sort of the elephant in the room, whatever Congress might want to do in the abstract, I would be very surprised if politicians were willing to act if it was at the expense of not catching child pornographers.
BOB GARFIELD:
Adam, as always, thank you very much for joining us.
ADAM LIPTAK:
Thank you, Bob.
BOB GARFIELD:
Adam Liptak is national legal correspondent for The New York Times.