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....'"

Comments

All it takes is one criminal now?

[brainboyz]

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...

Re:All it takes is one criminal now?

[parkinglot777]

Number of day does NOT matter. From TFA, the case is MORE complicated than it looks because there are tit for tat and politic all over the place from both sides. I tried to summarize the background of the case below.

1) June 28, 2013 - Government obtained pen/trap order to install pen/trap device to the email system in order to capture all non-content data (both from header & not from header but not email content) in "real-time" basis, and any technical assistant to use the device, from a targeted email account for 60 days.
2) On the same day, Lavison met with an FBI agent and refused to comply because the account has enable encryption services.
3) The same order on June 28 was reissued (after the meeting) with additional request that Lavabit must provide unencrypted data (non-content data which is still not the email content).
4) During this time, Larvison ignored contacts from the FBI.
5) July 9, 2013 - Government obtained show cause order to get reasons/explanations of why Lavison failed to comply.
6) July 10, 2013 - Lavison, his counsel, and representative from Government were on conference call for the show cause. The conference discussed on permission on data collection but not sure whether Lavison would allow the Government to install pen/trap device. The Government also asked for the keys for decrypting any encrypted content.
7) July 13, 2013 - Lavison contacted the Government proposing that he could capture the data and sent it to the Government. Furthermore, he requested $2,000 for the services. If the Government wanted daily updates, he asked for $1,500 more. The Government refused because the data is not done in real-time, so it cannot be trusted. Lavison argued the order did not require "real-time" access.
8) July 16, 2013 - it is the show cause hearing day. The Government had obtained a seizure warrant to get "all information necessary to decrypt communications sent to or from the targeted email including encryption keys and SSL keys" and also decrypted data associated with the targeted account.
9) Lavison refused to turn over the keys for a reason that it would compromise all other accounts; besides, there was no explicit request for them before.
10) The court agreed with the Government because of the search warrant which an implication for encryption keys request.
11) Lavison allowed the Government to install a pen/trap device on the system. The court did not ask for the keys but issued another hearing on July 26 to confirm Lavison compliance.
12) Even though the device was installed, the data obtained from the device could not be used because it was encrypted and the Government did not have the keys.
13) Right before the compliance hearing, Lavison tried to void the seizure warrant given, but the Government responded that Lavison's objection ignored the order on June 28.
14) August 1, 2013 - the court agreed that the Government that it is lawful for the Government to get the encryption keys because the Government would not look at other unrelated information but only the targeted. The court ordered Lavison to turn over the keys by 5pm on August 2, 2013.
15) Lavison gave (and claimed to be) encryption keys in an 11-page print out with 4-point font to the FBI right before 5pm. The Government told Lavison to give it in standard (digital) format by August 5.
16) August 5, 2013 - the Government moved the case for sanction and sought a fine of $5,000 a day.
17) August 7, 2013 - Lavison gave the keys to the Government, but the Government had lost 6 weeks of potential data so they pressed charge on Lavison.

You see, first Lavison wanted money for what he was going to do -- bad move. Then the Government knew the loop hole and obtained the seizure warrant to help the case. Then Lavison retaliated by not giving the key and the Government could not decrypt any data they obtained. After failing to void the warrant, he then retaliated furthermore by giving an unreadable version of the encrypted keys. After the Government pushed him e

Re:All it takes is one criminal now?

[spire3661]

We are not the Government's children, we are citizens. You completely lose all credibility with that line. Defiance is not always a legitimate excuse to swing the hammer of the state harder.

Procedural Rules?

[TechyImmigrant]

That's what's great about the legal system. Procedural rules trump right and wrong.

Re:Procedural Rules?

[jratcliffe]

You want right and wrong? Talk to a priest/rabbi/pastachef. The law, and the courts, are all about rules, and the interpretation of them, and they should be. Otherwise, we'd be making decisions like "yeah, he was illegally wiretapped, but he was a bad man, so we're going to convict him anyway."

Re:Procedural Rules?

[Zontar_Thing_From_Ve]

That's what's great about the legal system. Procedural rules trump right and wrong.

My best friend is an attorney and he has explained a lot about the US legal system to me. Basically judges don't like ambiguity. If people don't do things according to procedure and they get away with it, it opens the door for others to try it. For example, suppose someone is facing the death penalty in a US state that has it. A defendant could represent himself and if he loses the case (he probably will) then he can appeal that he had "incompetent legal representation" and try to get a new trial and role the dice again on the outcome. In fact, every time you lose you could just argue that no matter who the lawyer is and try to get a new trial until you win. There actually were a few cases more or less like this years ago and courts quickly realized that this was going to get out of hand so when defendants try to represent themselves, they are advised against it and warned that trying to argue on appeal that they didn't have proper legal representation won't work. So Lavabit blew it and tried a Hail Mary by gambling that the judge might feel sorry for them and overlook the procedural mistakes. It wasn't likely to work, but the US is a large country with a lot of judges and there probably is a judge somewhere who would have bought it, it's just that most won't because they don't like the potential outcome of allowing this, namely that other cases could have lawyers deliberately make procedural mistakes so if they lose the case, they can make that the basis of an appeal. Lots of people have incompetent lawyers work for them. It's not just death penalty cases. I have a friend who got cleaned out financially in a divorce case because he hired a bottom dollar lawyer and he got bottom dollar representation in court. The few cases where they have been punishingly large judgements in favor of the RIAA for "music sharing" have all involved shockingly inept legal representation for the defendant.

What are the "procedural mistakes"?

[meustrus]

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.

Re:What are the "procedural mistakes"?

[gnasher719]

So roughly speaking, if a judge tells you to do something, and you think it is nonsense, and you just say "no, I won't do that", then you are in contempt. Even if you were right and what he told you was nonsense. If you tell the judge "what you are asking for is nonsense for these reasons ... so no, I won't do that", then chances are you are not in contempt.

Way to lose an easy case...

[Anonymous Coward]

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."

I miss Groklaw :-(

[Anonymous Coward]

All this and other recent court proceedings make me miss Groklaw more and more! PJ where are you? Wahhhhhhhhhhh!

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