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Lavabit Loses Contempt Appeal
After being forced to turn over encryption keys (being held in contempt of court for several weeks after initially refusing to comply), secure mail provider Lavabit halted all operations last year. With the assistance of the EFF, an appeal was mounted. Today, the appeals court affirmed the district court decision and rejected the appeal. From Techdirt:
"The ruling does a decent job explaining the history of the case, which also details some of the (many, many) procedural mistakes that Lavabit made along the way, which made it a lot less likely it would succeed here. ... The procedural oddities effectively preclude the court even bothering with the much bigger and important question of whether or not a basic pen register demand requires a company to give up its private keys. The hail mary attempt in the case was to argue that because the underlying issues are of 'immense public concern' (and they are) that the court should ignore the procedural mistakes. The court flatly rejects that notion: 'exhuming forfeited arguments when they involve matters of “public concern” would present practical difficulties. For one thing, identifying cases of a “public concern” and “non-public concern” –- divorced from any other consideration –- is a tricky task governed by no objective standards..... For another thing, if an issue is of public concern, that concern is likely more reason to avoid deciding it from a less-than-fully litigated record....'"
One potential suspect on a network and the cops suddenly want the capability to spy on the whole network unimpeded? That sounds like a GREAT idea. Oh, wait...
That's what's great about the legal system. Procedural rules trump right and wrong.
I should use this sig to advertise my book ISBN-13 : 978-1501515132.
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What's not being talked about is the real cost of these draconian policies: the fact that it's driving more and more tech firms/jobs overseas to countries that are less faccistic.
Slashdot is in contempt of their users for forcing Beta on us. Down with Slashdot! Down with Dice!
If like me you want to know what the "procedural mistakes" were, and not read what is almost certainly someone's unnecessary diatribe about why the end result is wrong (hint: it's wrong, so, so wrong, and we all know why), let me help you find them. Use the last link in the summary, copied here:
http://www.techdirt.com/articles/20140416/06454126931/lavabit-loses-its-appeal-mucking-up-basic-procedural-issues-early.shtml
Summary: The case is about whether Lavabit should have been held in contempt, which hinges upon whether the court had the right to demand what it was demanding. However, Levison did not make any legal argument against the demand at the time. Therefore, it was justifiably held in contempt. The issue of whether the court had the right to demand private keys is important, but the issue needed to be raised sooner and with more force. Now it's irrelevant to further proceedings.
I am not a lawyer and I have not actually finished reading the article yet.
I sometimes ask revealing, often ignorant-seeming questions. Maybe they're harder to answer than you think.
Wow...
I am an attorney, as well as a geek, and I think that there's a special level of hell for attorneys that make an argument so badly that - despite agreeing with them - I find myself siding with the opposition. That's the case here. I am horrified by a lot of things the surveillance apparatus has been doing lately, I generally side with Snowden (with specific reservations similar to the ones I have about Julian Assange) and despite all that, it's clear that the judge made the right ruling here.
Lavabit acted like morons. They did nothing to advance the cause they ostensibly are serving, and quite a bit to hurt it. Procedure is important, ESPECIALLY when you're already in the legal system. "Levison complied the next day by turning over the private SSL keys as an 11 page printout in 4-point type." What is he, four years old? No sensible lawyer would have let him do that - that's an idiot libertarian who thinks it's more important to thumb his nose at the government than actually win his case. (Or maybe he just had the bad fortune to fail to hire a sensible lawyer. There's no shortage.)
And after eight months of idiocy like that, he really expected any sane judge to bend the rules in his favor because his lawyer said the case is "important..." Pro tip when dealing with the legal system - if you think your case is of "immense public concern" then don't hold that shit in your back pocket thinking it's a trump card. IT IS NOT. Play it first, make it clear what the stakes are, and FOLLOW THE RULES. If you need them bent later on, a judge who sees that you are trying to obey them is much more likely to be on your side than a judge who sees you giving him the finger. And real cases don't get won by surprises at the end. (Except apparently in Tennessee, where surprise witnesses are surprisingly common.)
A special level of hell. "A level they reserve for child molesters and people who talk at the theater."
The cogent and accurate description of public key cryptography and the impact of a private key being exposed in this order reflects (in my view) a remarkable understanding of the underlying technical issues by the court.
Regardless of how you feel about the contents of the decision here, at a minimum it's refreshing to see a court decision on a technical issue demonstrate an actual competent understanding of how the technology works.
All this and other recent court proceedings make me miss Groklaw more and more! PJ where are you? Wahhhhhhhhhhh!
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although I'm not sure how contempt appeal would function and how you would lose it.
Is this a factor for Oracle, for instance?
We have judges in the first place and not robots because we need a human being to make intelligent and reasonable decisions.
Refusing to do so means that the judge has decided to behave like a robot which means the judge has no purpose at all. We could replace this judge with a bit of computer code interacted with by clicking check boxes in an online form.
I've decided to stop wasting my time responding to AC trolls/sockpuppets... so if you want a response from me... login.
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Very interested in this... it will set precedents I think..
Stuck in my mind is who this LavaBit is to give out MY SSL key in the first place?
They are not the rightful owner of that key and are not allowed to give it out, I do not give permission for them to do so! If someone needs that key, they can ask ME and I will think on it. If this somehow is the way things work these days then I have many bridges to sell to you.. I have a great special on the Brooklyn Bridge!
Secondly, this whole 'contempt' business is ridiculous! It's such an easy/weak move... You can slap that on anything and to me is like a joker card that we probably should remove from the deck. Refusing to GIVE out self 'incriminating' information ("if we give this key, all our customers are going to be worried and cancel, leaving us bankrupt") should not lead be labelled 'contempt' if both parties do not agree that it is contempt.
The Gov't could have done so much more:
1) Build their OWN supercomputer to crack the key
2) Shoot a puppy every 3 seconds that Snowden does not give himself up
3) Have Janet Yellen run the presses a little longer and BUY the key from Lavabit for 1B dollars (takes just 1/2 day of running the presses)
Lastly... because all this irks me so much, but I was wondering if they add in more info with the disclosure of keys in case they decide to do so. Always wondered about that... basically have a nice Perry Mason style court session first explaining how the encryption works on a 'random' customer preferable some politician... (since privacy doesn't matter, encryption doesn't matter, so lets start with the private chats of Senator so and so...)
Don't know... Media says Snowden is a hero and Gov't wants him... that's at least healthy...
Then again.. with my own arguments as stated here, Snowden is not the one who should have outed all this stuff. It was not his bridge to sell either.
Lababit should have claimed it was a matter of national security, not public concern and they would have won the appeal.
I think the obvious thing here is simple.... every single court order to a party not already being represented must come with free legal representation paid for by the courts (police are officers of the court right? So the courts should pay). They should not even be able to issue you an order without making sure you have representation already present....with no means test.
Agreed.
"The medium is the message." - Marshall McLuhan
Prove anything by multiplying Huge Number times Tiny Number
Please think about what you just said.
Judges should NOT start being proactive. THAT'S NOT WHAT JUDGES DO. That shouldn't EVER be what judges do. Legal systems where judges are allowed to be proactive are, in many cases, scary places to live.
In the US, at least, judges are - per the US constitution - reactive. They respond to things that have already happened, and tell people how to interpret the law. That is the main check on the power of judges. Unlike the President or Congress, within their domain, judges' powers are virtually unlimited - so that domain is made as small as possible.
At very least, allowing judges to be proactive would require a massive rewriting of laws, starting with the constitution and working your way down.
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And this is why we don't have mainstream encrypted email. Major email providers (Google) have too much to lose by fighting the US government.
Case and controversy clause - Article III, Section 2. http://en.wikipedia.org/wiki/Case_or_Controversy_Clause
It's baked in.
How can there be a "basic" pen register demand?
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'exhuming forfeited arguments when they involve matters of “public concern” would present practical difficulties. For one thing, identifying cases of a “public concern” and “non-public concern” –- divorced from any other consideration –- is a tricky task governed by no objective standards..... For another thing, if an issue is of public concern, that concern is likely more reason to avoid deciding it from a less-than-fully litigated record....'"
If I am reading this correctly, Would this not mean that the federal government no longer has standing to hide behind "national security" when it comes to denying freedoms or bringing people to court without a warrant?
have you seen my sig? there are many others like it but none that are the same
This wouldn't be an issue if the e-mail server never had access to an unencrypted e-mail.
when procedure and the denizens of The Bar are more important than the facts, there is a problem with the system. By Lawyers, For Lawyers.
and before someone goes "if you ever need a lawyer you'll wish you had one!" I reply, "the only reason I'd need one is because they created the situation in the first place!".
I'd use the same logic the anti-gun crowd uses. Ban lawyers, it is access to lawyers by the law-abiding that leads to misuse of lawyers...
Another person posted something I thought was significant to the problem of our legal system. Ladar Levison wasn't even given an opportunity to get legal advice on how to respond. His actions were purely a matter of 'do it or else' (within hours he had to provide the key). The court said, hand over the keys NOW, and Ladar Levison, not being a lawyer had no opportunity to say "wait, I don't know how to object to such a request", not at the time of the request nor after. Ladar Levison also didn't have the financial resources to do so. It's easy to say he screwed up. The thing is he didn't really have the opportunity to do things properly. Nobody can say he did things improperly because there was no proper way to do them (as a non-lawyer). He did the only thing he could.
I was in a similar legal situation. I have a small company and we were sent a nicely worded letter by a lawyer (ie patent troll) saying we were in violation of a patent (no matter we weren't infringing on it and it wasn't even really our product by that of an upstream company). None-the-less we had no time to get a lawyer either because by the time we were notified of a lawsuit there was a default judgement against us. Had we even received the actual lawsuit (and not after the fact, and what was served wasn't served properly) we would have only had 10 days to respond. I sent numerous emails and made an immediate effort to contact various lawyers. I didn't get a SINGLE response in a timely fashion. 10 days is basically a little over a week. I was frantically trying to get in contact with any lawyer let alone a competent lawyer from the time we were 'served' (via UPS to a rental box mind you at that).
Later I was yelled at by a lawyer who said "you should have known better", as if a 1-2 person company has the resources, and time to monitor all the legal systems on earth for patent lawsuits (the suit was filed in another state). But apparently we might have been liable because at some point we might have sent goods to someone in that state. yea... OK, this is a reasonable and fair system.
Worst part about all this is it cost several times in legal bills to settle a lawsuit than the settlement was for. And the settlement was for fifty times the amount the law would have even allowed they to get had we taken it to court and LOST! We would have spent millions taking it court most likely too.
they should've just destroyed all copies of all keys and said "oh well"