However Boucher may have waived his privilege against self-incrimination when he earlier provided access to the drive containing the alleged child porn at the time of his arrest, Froomkin said. "You can waive your right if you show the stuff to people and therefore have already admitted to the critical issue of being tied to the data." In that case "it might not be any more incriminating to do that again. It puts the case in a completely different position."
The Boucher case comes at a time when courts are increasingly willing to ask individuals to produce data that in the past might have been considered self-incriminatory, Froomkin said. "One hundred years ago, the Supreme Court had a view of the forced production of private papers which said 'of course we don't do that'," Froomkin said. That has changed over the past 30 years, he said.
In this case, Boucher could well be asked to use his password to unlock the files containing the pornographic data and be offered immunity for that act, he said. In other words, the courts could treat the documents as never having been encrypted in the first place. So the act of decrypting it by itself would not necessarily be self-incriminating, Froomkin said.