In upholding that appeal, Judge Sessions wrote that the act of producing documents in response to a subpoena can be considered incriminating only when the existence of the subpoenaed material is previously unknown to the government or where production would implicitly authenticate the documents.

"Where the existence and location of the documents are known to the government, no constitutional rights are touched," Judge Sessions wrote, citing a previous case. The judge noted the fact that Boucher had accessed the encrypted files in the presence of the customs agent, who then also had viewed some of them and had discovered them to contain pornographic material involving children.

As a result, the government already knew of the existence and location of the files containing the incriminating evidence, he said. Similarly, the mere act of Boucher producing an unencrypted version of his drive is not necessary to authenticate it because Boucher himself has admitted to possession of the computer, the Judge wrote in his five-page ruling upholding the government's appeal.