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Lavabit Loses Contempt Appeal 128

Posted by Unknown Lamer
from the don't-leave-your-lawyer-at-home dept.
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....'"
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Lavabit Loses Contempt Appeal

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  • by brainboyz (114458) on Wednesday April 16, 2014 @12:07PM (#46769099) Homepage

    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...

  • by meustrus (1588597) <meustrus.gmail@com> on Wednesday April 16, 2014 @12:27PM (#46769447)

    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 [techdirt.com]

    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.

  • by danheskett (178529) <danheskett@NOSPam.gmail.com> on Wednesday April 16, 2014 @12:42PM (#46769715)

    I think that the ruling and the case demonstrate the futility and the problems with attempting to defend yourself or your clients against the government. It seems clear to me that Lavabit suspected that the order was overbroad, but had no idea what to do about it. The contempt charge was probably inevitable as he searched for a legal basis and representation to do what was quite obviously "the right thing".

    The ruling also has a powerful, and sad, commentary on our system of government as it stands today:

    "Because of the nature of the underlying criminal investigation, portions of the record, including the target’s identity, are sealed."

    We are right back at Star Chambers and secret courts and hidden rulings and anonymous witnesses. We've devolved back to a legal system which is only concerned with secrecy.

  • by Anonymous Coward on Wednesday April 16, 2014 @12:48PM (#46769821)

    Did you bother to read the article? I'm assuming not. The feds wanted targeted information, they requested targeted information, they got a court order for targeted information. Lavabit decided they didn't need to bother following the court order, and then the feds got broader because he was messing around. So...

    What it takes is one criminal, and a network admin who thinks that it's more important to give the government and the courts the finger rather than protecting his network. In this case, after months of games and just flat-out refusal to follow the court's orders, the government basically said to the court "Look, at this point, even if he started complying with the Court's orders we wouldn't trust anything he gave us. The only way to do things now is to break open the network."

    You know what? When my kids eff around and lie to me in the same ways, I react the same way the government/courts did. You can't play stupid 4-year-old games then expect not to get treated like a 4-year-old.

  • Re:Procedural Rules? (Score:2, Informative)

    by Anonymous Coward on Wednesday April 16, 2014 @01:23PM (#46770333)

    So what I read here is that justice is only for rich people. The system is set up so that only lawyers who understand all the "procedures" and tricks can represent you. If your "opponent" (be it a person, corporation or the goverment) can afford to pay more than you for a top dollars lawyer, you are out of luck getting justice even if you are right and they are wrong.

  • by parkinglot777 (2563877) on Wednesday April 16, 2014 @03:52PM (#46772485)

    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

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