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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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  • Procedural Rules? (Score:5, Insightful)

    by TechyImmigrant (175943) on Wednesday April 16, 2014 @12:07PM (#46769103) Journal

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

  • by For a Free Internet (1594621) on Wednesday April 16, 2014 @12:08PM (#46769115)

    Smash the tyranny of bourgeois oppression with workers power!

  • by jratcliffe (208809) on Wednesday April 16, 2014 @12:14PM (#46769235)

    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."

  • by TechyImmigrant (175943) on Wednesday April 16, 2014 @12:20PM (#46769331) Journal

    And bouncing a person into court before they can get a lawyer to represent them that they couldn't afford anyway, so they can dismiss their appeal on procedural rules he wasn't qualified to navigate. Yay! A win for justice!

  • by Anonymous Coward on Wednesday April 16, 2014 @12:32PM (#46769549)

    I think that level of hell is reserved for all the judges and lawyers that don't give a damn about right, wrong, just or unjust but are only concerned that the rules are followed to the dot.
    They are the ones that make the legal system into a "the richest one wins" system. That we could have without wasting all that money on having courts.

  • by cold fjord (826450) on Wednesday April 16, 2014 @12:37PM (#46769627)

    That isn't how this started. Lavabit had apparently complied with much more limited surveillance demands in the past, but then decided they weren't going to do that any more. Since they wouldn't comply with the narrow demand things escalated, Lavabit didn't comply, and things escalated again. Eventually Lavabit was hit with contempt and produced this outcome. This one rests on Lavabit. It appears likely they defied the law to help Snowden, and they are their customers lost out.

  • I miss Groklaw :-( (Score:5, Insightful)

    by Anonymous Coward on Wednesday April 16, 2014 @12:39PM (#46769677)

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

  • Also Disturbing (Score:5, Insightful)

    by danheskett (178529) <danheskett@NOSPam.gmail.com> on Wednesday April 16, 2014 @01:01PM (#46770093)

    I think one thing we need to be aware of is that the Court defers to the Government's claim that, once decrypted, the Government will not view anything but the "metadata" of the communication, not it's "content", and not for anyone but the target.

    Every legal case, every Court hearing, from here forever, the Government must never be given the benefit of the doubt. Any time they have the capability to abuse that claim, we must assume that they will, and Judges should start factoring that assumption into their discussions. We know, only through illicit disclosures, the government will abuse the legal theories that are plainly written in black letter law (Section 215 for example), and will simply declare that the domestic law doesn't not apply for any number of novel theories outside the review of anyone.

    Judges must start being proactive. I think it's fairly clear that Levinson was skeptical that the Government would only target one user, and that the Government would never use any of that data that they were not permitted to have. In that regard, he was 100% right that forcing mass decryption is in fact "a general warrant", the precise protection that the 4th Amendment's specific language was intended for.

    The whole affair also shows how badly the Stored Communications Act and the Pen/Trap statue's are drafted and how out of date they are. The Law must finally realize that there is no such thing as "meta-data" anymore. It's a label without meaning. The message is the message, including the routing information. "Content" versus "Meta-data" is a garbage distinction with email. The entire layer 7 message - headers and all, is the content.

  • by danheskett (178529) <danheskett@NOSPam.gmail.com> on Wednesday April 16, 2014 @01:05PM (#46770139)

    The cogent and accurate description of public key cryptography a

    Disagree. The "padlock" analogy was garbage. In PKI, anyone cannot simply "lock the padlock" as the author of the ruling states. For any key-set, exactly 1 key can "lock", and exactly 1 key can "unlock". The brief claimed that anyone could come by and lock it, and that's not true. And it's relevant since, as Levinson stated, with the keys, the Government could impersonate his service to any of his 400,000 users.

    As we know, they government routinely uses deception. The DEA creates fake histories of evidence and plants it on local law enforcement.

  • by fustakrakich (1673220) on Wednesday April 16, 2014 @01:12PM (#46770205) Journal

    Lavabit had apparently complied with much more limited surveillance demands in the past, but then decided they weren't going to do that any more... This one rests on Lavabit.

    This is true. Once you sell your soul, it's pretty tricky business trying to buy it back.

  • by cold fjord (826450) on Wednesday April 16, 2014 @01:22PM (#46770325)

    Their business plan was premised on a promise they couldn't legally keep. Not a good position to be in.

  • by Rich0 (548339) on Wednesday April 16, 2014 @02:31PM (#46771255) Homepage

    I think that level of hell is reserved for all the judges and lawyers that don't give a damn about right, wrong, just or unjust but are only concerned that the rules are followed to the dot.

    Think about what you just posted. Essentially you are saying that there should be a Get Out of Jail Free card at the end because you didn't cooperate during the trial but you think the case is really, really important. Not gonna happen my friend.

    No, there should be a Get Out of Jail Free card at the end because you didn't do anything wrong. People who didn't do something wrong shouldn't be in jail, period. People who are innocent shouldn't HAVE to cooperate during the trial - the court should be apologizing to them for dragging them through the trial in the first place.

  • by spire3661 (1038968) on Wednesday April 16, 2014 @04:20PM (#46772935) Journal
    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.
  • by amiga3D (567632) on Wednesday April 16, 2014 @05:31PM (#46773829)

    There I fully agree. In fact I lay the blame for all this crazy bullshit on Congress. They write crazy laws that are then pursued with abandon by a crazy legal system.

"You tweachewous miscweant!" -- Elmer Fudd

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