Slashdot Mirror
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.
Smash the tyranny of bourgeois oppression with workers power!
UNITE with the Campaign for a Free Internet because today, our future begins with tomorrow!
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.
Well, that's why you have to decentralize! Let them deal with millions of individual users instead.
Ezekiel 23:20
All this and other recent court proceedings make me miss Groklaw more and more! PJ where are you? Wahhhhhhhhhhh!
Comment removed based on user account deletion
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.
Comment removed based on user account deletion
Comment removed based on user account deletion
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.
Comment removed based on user account deletion
Very interested in this... it will set precedents I think..
Wrong. This was decided solely based on precedent. If you RTFA, the issue is that Lavabit attempted to raise arguments in the appeal that were not raised in the initial case (and in some cases, were directly counter to some of Lavabit's statements). ANY other decision would have broken with precedents, some of them long established. So, there's no precedent worth noting here. The judge explicitly said that the potential ramifications of the case are still unclear and need further litigation (which Lavabit has the option to do) before longstanding rules are ignored on Lavabit's behalf.
This is Yet Another Example Of Why You Should Hire a Good Lawyer When Dealing With The Feds In Court. If Lavabit had good advice at the earlier hearings, this appeal could have been much more interesting, and might well have gone the other way.
And for your other comments:
1) Bullshit. It's no more your SSL key than the IP used in your cell phone is yours. In fact it was Lavabit's SSL key, (Pay attention to this next part) AND THEY USED THE SAME KEY TO ENCRYPT TRAFFIC FROM ALL USERS OF THE MAIL SERVICE - not the brightest idea, hmmmmm? And as a general note: Your ignorance of the details does not mean that the world works the way you wish it would.
2) Contempt orders serve a valid purpose. You do not appear to know what that is. We can discuss your opinions on Contempt orders when you demonstrate otherwise.
3) RTFA. The Gov't is not required to do more, and if they did, you'd be bitching and moaning about their use of your tax dollars, the breed of puppy used, or inflation, respectively.
4) RTFA. The government requested the key because Lavabit was sending them encrypted data. They had the statutory authority to require Lavabit to provide all necessary help to retrieve unencrypted data, and since Lavabit was not providing it unencrypted, they asked for the appropriate key.
For the record: Lavabit could have avoided a lot of this posturing, and risked compromising fewer people, if it had used different encryption keys for different users - but they didn't . . .
Lets start refering to The War Against Terror by it's initials. . .
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?
Comment removed based on user account deletion
'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