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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...

    • Re: (Score:2, Insightful)

      by cold fjord (826450)

      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.

      • Re: (Score:3, Insightful)

        by fustakrakich (1673220)

        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.

        • Re: (Score:2, Insightful)

          by cold fjord (826450)

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

        • by Anonymous Coward

          Moreover, this is what happens when you trick yourself into thinking a few technical measures between you and someone else's secrets are enough to protect you from being made to reveal them.

          The system should have been designed, from the ground up, so that there was absolutely no way, sort of a user giving up his passphrase, of him ever producing any of this information. He should have made sure the protocols blinded himself in such a way as to make any order impossible to comply with.

      • 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.

        Didn't see that mentioned in any of the fine articles...do you have a source for that info, or did I miss something?

        • It was in some of the older articles on the matter. You'll have to look it up, I don't have time at the moment.

    • Re: (Score:3, Informative)

      by Anonymous Coward

      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

      • 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...

        So the government is still at fault for asking for more information than necessary. You seem to be saying that the government can do as it pleases in response to someone else's actions, which is simply a poisonous notion.

        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.

        So you think the government should act like parents and violate everyone's rights? An interesting idea, but one I will have to reject.

      • Did you bother to read the article? I'm assuming not...

        In this case, after months of games and just flat-out refusal to follow the court's orders...

        6/28 - Judge issues pen register order
        7/9 - Judge issues summons to Lavabit to show cause for non-compliance with said order
        7/10 - Government/Lavabit conference call where government demands SSL keys
        7/16 - Government obtains search warrant for data encryption keys and SSL keys
        8/7 - Levison ultimately complies with court

        That's 40 days, not "months". And 40 days is probably par for the course for those challenging government surveillance orders.

        Since pen register orders don't require probable cause, I

        • 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

          • While I respect and applaud your passion on this subject, all I was attempting to do was refute GGP's "months" assertion. That, and throwing my support behind Levison's (admittedly clumsy) resistance to the government's over-reaching demands.
          • by TheCarp (96830)

            > by giving an unreadable version of the encrypted keys

            My only real nitpick is... hardly unreadble. Small yes, but its not like they don't easily posess the technology to deal with such a minor inconvinence. A bit childish yes, but nothing more than a symbolic statement. I consider them claiming anything otherwise quite disingenuine.

            They just didn't like that he didn't roll over when they snapped their fingers and that he would rather shut down than help them. In the end they both may have acted childish

            • My only real nitpick is... hardly unreadble. Small yes, but its not like they don't easily posess the technology to deal with such a minor inconvinence.

              Just to let you know, it is dangerous to assume that it is still readable. ;-) It is safer to say it is unreadable because 1)the language is the court record tends to show that it is useless, 2)most older people cannot read 4-pt font without any assisting device, 3)we do not know how it is being printed (many inkjet and older printers aren't that good when print something that small), 4)we do not know what kind of font it is being used so some characters may be very similar even in the bigger font size, 5)

      • 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 jxander (2605655)

      Meatspace isn't much better. They're up to, what, 3 degrees of separation to qualify you for a search?

      So if the mechanic that works on your car stops to eat at a McDonald's, and a terror suspect has visited that same McDonald's ... you're now a viable target for gubment surveillance. And apparently, so is everyone that uses the same email client.

  • 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 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."

      • Re: (Score:3, Insightful)

        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!

        • Gideon makes such an outcome improbable, and if it happens will end up in an appeals court with the case being overturned due to lack of qualified representation.

          What are they teaching kids in schools these days? Back in my day Gideon's Trumpet was in the curriculum and we went over all the key / formative SCOTUS rulings over the US's history.

          • So the judge ruled in his favor because of Gideon? Oh wait..

            • Gideon won on appeal through SCOTUS. Thats the entire point. If anyone pulls another Gideon, the case will be immediately won on appeal by any first year law student.

          • by tirefire (724526)

            What are they teaching kids in schools these days? Back in my day Gideon's Trumpet was in the curriculum and we went over all the key / formative SCOTUS rulings over the US's history.

            I totally don't know. I took civics class in high school in 2008, and a couple weeks were devoted to students researching and presenting information about landmark court cases to the class. I was home sick the day everyone picked their court cases, so I got stuck with a court case I had never heard of and that I knew nobody else wanted: Gideon v. Wainwright.

            What luck! I got to watch Gideon's Trumpet during school hours, I read and learned way more about the public defender system than I had time to

        • Before they can get a lawyer to represent them? This wasn't an arrest. It was a subpoena.There was plenty of time to lawyer-up.

          Seriously guy, all you're doing is making stuff up.

          Oh, and while we're on the topic, this is not "warrantless wiretapping". It was a narrowly tailored subpoena issued because the Federal prosecutors convinced the court that there was reasonable cause to believe a crime was committed. This is exactly the way the system is supposed to work. And if you think that people who commit fr

      • by starless (60879)

        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."

        The US justice system is unique in the world in completely throwing out a case if there is a procedural error:
        http://www.nytimes.com/2008/07... [nytimes.com]
        While I'm sure many will defend the way things are done in the US, it seems that this is something
        that at least merits some discussion of the pluses and minuses of each way of doing things.

      • by Rich0 (548339)

        I think the problem with your argument is that people expect the justice system to deliver justice. If all it does is determine compliance with a set of rules, then why should we spend so much money on it and give it power over our lives?

        I actually wonder if the "rule of law" isn't part of the problem. Loopholes and procedural games are really just the natural consequence of the rule of law - you can never codify justice, and laws are rigid while those seeking to evade them are flexible. The result is th

      • by reanjr (588767)

        There's no good reason decisions like this can't be made by a jury.

    • by Anonymous Coward

      From "A Man for All Seasons" by Robert Bolt
      -----

      William Roper: So, now you give the Devil the benefit of law!

      Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

      William Roper: Yes, I'd cut down every law in England to do that!

      Sir Thomas More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cu

    • Re:Procedural Rules? (Score:5, Interesting)

      by Zontar_Thing_From_Ve (949321) on Wednesday April 16, 2014 @12:56PM (#46770013)

      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.

      • Re: (Score:2, Informative)

        by Anonymous Coward

        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.

        • That's for civil cases, mostly. A criminal defendant does have more or less competent representation, and if the representation was inadequate through no fault of the defendant, that's a legitimate reason to appeal.

          That, I think, is why some criminal prosecutors (take the description as you will) bring up a big list of trumped-up charges and ask for a plea bargain: to avoid a trial.

    • Appeals are about procedures. You can't just base an appeal on that fact that you don't like the verdict. You must prove that something was done wrong in the original case. The "wrong" things are not always procedural, but if you don't follow the procedures yourself, you can't complain the other side did it wrong. The decision of the original court should have taken the "public concern" into account.
    • by Artifakt (700173)

      Just look at what happens when you have a law based on even slightly flaky or questionable cases, and how serious it can be.
      Take Roe v Wade. It's a case where the winner used a legal pseudonym to protect her privacy, only to give statements years later publicly identifying herself and saying she has regrets about how the case was decided. Don't you just bet the anti-abortion factions have gotten renewed support from the resulting publicity? What would have happened

    • by amiga3D (567632)

      How about a class action lawsuit. Essentially they violated the 4th amendment rights of every single customer of this company. That should at least make the lawyers happy.

    • Procedural rules trump right and wrong.

      What's that meme going around say? Something like, "Everything Hitler did was legal - everything Schindler did was illegal."

      aside: you. You who is just jumping up and down to invoke Godwin's Law. Wiki it.
       

  • Smash the tyranny of bourgeois oppression with workers power!

    • by Sabriel (134364)

      Because that worked oh-so-well for the USSR. Oh, wait, no it didn't.

      The trouble with practical communism is that the Marxists never did figure out how to accomplish step 2:

      1. Establish socialist state monopoly by arranging violent overthrow of capitalist state monopoly.
      2. The heavily armed sociopaths used to achieve step 1 now hand over power to the proletariat.
      3. Transition to stateless communism with world peace via post-scarcity technology.

      World peace is cool, but step 2 is bloody tricky. Nobody's succee

  • by meustrus (1588597) <meustrus@gmailCOW.com minus herbivore> 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 gnasher719 (869701) on Wednesday April 16, 2014 @12:32PM (#46769555)
      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.
      • by westlake (615356)

        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.

        You have to frame your objections as a proper legal argument. You have to get that argument in the record to preserve it on appeal. That simply keeps you in the game. It doesn't give you a winning hand.

  • by Anonymous Coward on Wednesday April 16, 2014 @12:27PM (#46769453)

    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."

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      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 KliX (164895)

        The rules being followed to the dot is the *only possible way law can work*. WTF, did you even think about the consequences of the opposite situation?

      • 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.

        If you think the law is about right and wrong, just and unjust, you're going to have a bad time.

    • "A level they reserve for child molesters and people who talk at the theater."

      Bonus points for an obscure yet relevant Firefly reference!

    • by Rinikusu (28164)

      IIRC, weren't these "orders" given in a non-disclosure format, so even talking to a lawyer about this could result in contempt/criminal charges? If so, how does one prevent this type of pro-se incompetency argument if one can't even talk to a lawyer about the issue at hand? Or should one talk to a lawyer anyway and let the courts figure it out later while risking imprisonment?

      • No, they weren't. He had a lawyer when he talked to the FBI, then didn't have one in court (his choice), then had one later in court. There's a hell of a lot of misrepresentation about this case.
        • by Rinikusu (28164)

          If that's true, Levison has gone from "hero" to "what the fuck were you thinking, you idiot!" real fast.

  • by Anonymous Coward

    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.

    • 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.

  • 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!

    • by sam_nead (607057)
      If I had mod points then one would be yours. "Wahhhhh!", indeed.
    • by u38cg (607297)
      Umm, she shut up shop because of Snowden.
      • by DrJimbo (594231)

        Umm, she shut up shop because of Snowden.

        Blame the messenger much? Her decision to stop working on Groklaw was triggered by an announcement by the owner of Lavabit [groklaw.net]:

        The owner of Lavabit tells us that he's stopped using email and if we knew what he knew, we'd stop too.

        There is no way to do Groklaw without email. Therein lies the conundrum.

        The reason she stopped was the invasive and Unconstitutional spying by the NSA.

  • 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

      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.

  • by Karmashock (2415832) on Wednesday April 16, 2014 @12:52PM (#46769899)

    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.

    • While I generally agree with you, it makes it important to treat the judge with respect. A calm judge can make intelligent and reasonable decisions. It's a lot harder to do that for somebody who has just been ignoring or mocking the legal process.

      • You're a judge... you are supposed to be a ROCK of rationality.

        • The theory was that we wanted humans, not robots. Both have advantages and disadvantages. If you want to use humans, you have to use members of Homo Sapiens as they are. That means that judges will go easier on people who aren't deliberately annoying them. You want judges to be unaffected by such, use robots.

          • I expect judges to be adults. Not fussy children that are unworthy to wear the robes.

            Our society is plagued with legions of children masquerading as adults. They are not adults just because they're 40 years old. Especially not when they go through their day whining and crying and throwing temper tantrums.

            Part of being an adult is sublimating your base animal reactions and behaving in an age appropriate, dutiful, rational, and civilized manner.

            End. Period. Point.

  • 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 Tokolosh (1256448)

      Agreed.

      "The medium is the message." - Marshall McLuhan

    • by amosh (109566)

      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

      • Judges should NOT start being proactive.

        I suppose I should have said "in their rulings". Meaning, they should be defacto skeptical of Government claims, and defacto assume that Government shall not be trusted. Currently, they take the Government's claims at face value. I.E. the Government says they wont use any data they are not allowed to, so we trust them. They should be proactive in assuming that the Government lies.

        n the US, at least, judges are - per the US constitution - reactive.

        Really? Where

        • by amosh (109566)

          Case and controversy clause - Article III, Section 2. http://en.wikipedia.org/wiki/Case_or_Controversy_Clause

          It's baked in.

          • Well you are right. Thanks for that. I think that I have improperly cement Section I as the only one establishing courts because it is the one most cited in research, Section II being well settled by this point.

            I was not originally suggesting the Court seek out cases or controversies, or have a police power (like in, say, France).

            I do suggest that they need to actively distrust in hearings and rulings the claim that the Government will do what it says. In the case, Lavabit, the Government says matter of

  • 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.

  • How can there be a "basic" pen register demand?

  • '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?

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