## Facts

- Federal agents seized a laptop from Sebastien Boucher during a border-related investigation.
- The laptop contained encrypted storage that agents could not access without a password or decrypted copy of the contents.
- A grand jury issued a subpoena seeking production of the encrypted contents in an intelligible, unencrypted form.
- Boucher invoked the Fifth Amendment privilege against self-incrimination, arguing that decrypting or producing the decrypted contents would be testimonial.

## Issues

1. Whether compelling a target to provide an unencrypted version of encrypted electronic data constitutes compelled testimonial communication protected by the Fifth Amendment.
2. Whether the “foregone conclusion” doctrine applies so that the act of producing decrypted contents is not sufficiently testimonial.
3. Whether a subpoena may compel production of contents (in readable form) without compelling disclosure of the password itself.

## Decision

- The court enforced the subpoena to the extent it required production of the contents of the encrypted storage in unencrypted form.
- The court concluded the Fifth Amendment did not bar compelled production because the testimonial aspect of production was a foregone conclusion.
- The court did not require Boucher to disclose the password; it required production of the data in an intelligible form.

## Legal Principles

- The Fifth Amendment protects against compelled testimonial communications, not against compelled production of physical evidence or the contents of documents as such.
- An act of production can be testimonial if it implicitly communicates control, authenticity, or existence of the requested materials.
- Under the foregone conclusion doctrine, compulsion is permissible when the government already knows with reasonable particularity that the materials exist, are in the person’s control, and are responsive; the production adds little or nothing to the government’s knowledge.
- A subpoena may require production of data in a usable form while avoiding direct compulsion to reveal the memorized password, depending on how the order is framed.

## Conclusion

The court held that compelling production of the encrypted drive’s contents in unencrypted form did not violate the Fifth Amendment where the government could already establish the existence and control of the sought data, making any testimonial component of production a foregone conclusion, and the order avoided requiring disclosure of the password itself.


In re Grand Jury Subpoena to Boucher, No. 2:06-mj-91, 2009 U.S. Dist. LEXIS 13006 (D. Vt. Feb. 19, 2009)