ACLU: Lavabit Was 'Fatally Undermined' By Demands For Encryption Keys 230
An anonymous reader writes "When encrypted email provider Lavabit shut down in August, it was because U.S. authorities demanded the company release encryption keys to get access to certain accounts. Lavabit's founder, Ladar Levison, is facing contempt of court charges for his refusal to acquiesce to their demands. But now the ACLU has filed a 'friend of the court' brief (PDF) in support of Levison, saying that the government's demand 'fatally undermined' the secure email service. 'Lavabit's business was predicated on offering a secure email service, and no company could possible tell its clients that it offers a secure service if its keys have been handed over to the government.' The ACLU added, 'The district court's contempt holding should be reversed, because the underlying orders requiring Lavabit to disclose its private keys imposed an unreasonable burden on the company. Although innocent third parties have a duty to assist law enforcement agents in their investigations, they also have a right not to be compelled "to render assistance without limitation regardless of the burden involved."' Lavabit is also defending itself by claiming a violation of the 4th amendment has occurred."
duty to assist law enforcement agents?? (Score:5, Insightful)
Fuck that! I have no such obligation
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You do when they have a warrant.
Re:duty to assist law enforcement agents?? (Score:4, Insightful)
Sure, they'll get pissed and come at you - but that doesn't change the fact that it's the right thing to do.
Civil disobedience has a cost ... (Score:5, Insightful)
You don't when that warrant is ethically and Constitutionally wrong ...
You are mistaken, there is nothing in the Constitution that says you can pick and choose which warrants issued by a valid court you will obey.
What you are thinking of is called "civil disobedience", and civil disobedience often has a cost. Precisely the sort of thing we are seeing with respect to the contempt charge in this case. Civil disobedience is not an end run around the law nor a get out of trouble free card. What it is is a way to preserve your personal sense of ethics and a way to draw attention to and raise public awareness of an unjust law with the goal of amending or repealing the unjust law.
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Is there a difference between what you can legally be compelled to do and your duty?
Re:duty to assist law enforcement agents?? (Score:5, Interesting)
"Is there a difference between what you can legally be compelled to do and your duty?"
Yes, definitely.
In the same way that "treason" is betrayal of your people and your country, as opposed to failure to obey your government. This is the fundamental failure made by the German people which allowed the Nazis to come to and maintain power.
You have a duty to be honorable and ethical. You have an obligation to do what is legal. They are not the same things.
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properly comprehend* - You have a strawman on your hands since you are refuting a claim she did not make. She answered a question by pointing out that your "duty to others" is much boarder than your "duty to obey the law". Most of the things in your "duty to others" are not legal obligations, eg
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You have many other duties as well. When they conflict, how do you decide which one(s) to follow?
I don't know what I would do, but I have to applaud the owner for his brave choice to not compromise his ethics to obey a questionable government action.
If you are curious (probably not, but here goes) you always hear that the people in the military have to obey the orders of the
Lawful can be unethical ... (Score:2)
If you are curious (probably not, but here goes) you always hear that the people in the military have to obey the orders of their superiors. That is wrong. They have to obey the LAWFUL orders of their superiors, and REFUSE to obey unlawful ones.
Lawful and matching your personal sense of ethics or morality are two separate things. A legal order may violate a soldier's personal sense of ethics or morality. A soldier's ability to refuse an order is only with respect to the constitution, the universal code of military justice, ratified treaties concerning the international laws of war, etc.
Along those lines, the founders of this country fully believed that it was the right and duty of any citizen to oppose inappropriate laws and actions by the government.
Uh, no, "inappropriate" is grossly vague. If you want to use the word "unjust" you may be partially correct. However our founding fathers used force to enforce some
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"Is there a difference between what you can legally be compelled to do and your duty?"
In fact, not only are they not the same things, it is not unusual (especially in recent years) for them to be in conflict.
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Is there a difference between what you can legally be compelled to do and your duty?
I think the important question is;
Is there a difference between what you can illegally be compelled to do despite the illegality, because authorities have decided they don't effectively have any Constitutional limits to their power, and your duty?
The US is increasingly becoming a typical tin-pot authoritarian hellhole. Only with more food and wealth...for the moment. That, too, will disappear in the very near future, as well as any pretenses that people have any rights or any say at all in their governmen
Re:duty to assist law enforcement agents?? (Score:4, Insightful)
The due process involved in getting a valid warrant has been stripped of most of its teeth.. Cops can now get warrants over the phone in a matter of minutes. This should not be, but that's how it is now. As a result, a warrant is no longer a guarantee that law enforcement has done any legwork before hassling anyone. Effectively, we are now all guilty until proven innocent.
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"The due process involved in getting a valid warrant has been stripped of most of its teeth.. Cops can now get warrants over the phone in a matter of minutes. "
I don't know where you live, but that sure as hell is NOT the case here. A warrant has to be typed up, and literally signed by a judge, in his/her own handwriting. No rubber stamp allowed. If cops around here try to enter a home without a SIGNED warrant, they are likely to get shot dead.
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Re:duty to assist law enforcement agents?? (Score:4, Interesting)
An unsigned warrant, or no warrant, will still get people shot.
"Warrantless searches" by the NSA, etc. are not home-invasion-type searches.
In the case of a "secret" search by the government, the government still has to present the presiding judge with its warrant(s), probable cause, and evidence. It's just that it does so in secret.
So don't misunderstand me: I'm not saying these things are legal or justified. But even as unconstitutional as they've gotten, they still do have rules and procedures. No "fictitious" judges or courts allowed.
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Even FISA itself admits it's pretty much rubber stamping everything.
Re:duty to assist law enforcement agents?? (Score:4, Interesting)
There was a case here a long time ago (actually more than one case IIRC), in which warrants were served that were literally rubber stamped. Turned out the police had made a deal to stamp signatures on illegal warrants. The state Supreme Court ruled that a warrant must be signed in the judge's "own hand". In other words... no rubber stamp allowed.
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"what evidence is there to suggest that there is actual probable cause and evidence given to the judge of the secret courts? thats right, there is NONE. for all we know, they are just stamping a yes on every request without any evidence whatsoever. you cant have checks and balances on a system that resides outside the bounds of visibility."
No, that's not true. Don't misunderstand me: I'm not defending the practice. But we need to understand how it actually works.
*IF* an American citizen is TRIED for a crime, it still takes place in the public courts. And it has happened on a number of occasions. When that happens, if the government has "secret" evidence, it is supplied to the trial judge (who may be under orders of secrecy regarding it, but the judge still does get to see the evidence).
So a "regular" judge DOES still get to see any evid
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If cops around here try to enter a home without a SIGNED warrant, they are likely to get shot dead.
More likely, you'll be the one who is shot dead. And nobody will get in any trouble for killing you. Ever heard of a No-knock warrant? [wikipedia.org]
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"Ever heard of a No-knock warrant?"
Yes, of course. But they are the exception, not the rule. They require special circumstances (if, of course, the legal system is operating properly).
Some states, like Indiana, have laws that specifically say it is LEGAL to resist an unlawful search or detention. The Indiana police really went apeshit when that law was passed. To read their rabid rants on the webpages, you'd get the impression that every grandmother and small child was inherently a cop-killer, and the only thing that prevented them were r
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Yes, but when law enforcement, esp the feds, throws around the 'terror' card, secret courts that rubberstamp warrants and due process suddenly not applying (esp to 'it-happened-on-the-internet' communications) become the norm. A citizen shooting a cop burns for a long time, illegal search notwithstanding. It shouldn't be this way, but that's how it is now.
The secret court issue is the big problem. They exist solely to issue warrants under conditions the 'normal' courts otherwise wouldn't. Many times, th
Re:duty to assist law enforcement agents?? (Score:5, Insightful)
You do when they have a warrant.
Well that is the issue being contested here, so you can't say for certain that a warrant is sufficient.
The government may get a warrant for the contents of one safe-deposit box, but they don't have
the right to a warrant for the combination to the bank's vault.
The idea that one person must surrender all of his possessions so that law enforcement can capture another person
is what is at issue here.
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Hammer, meet the nail's head. Where are the moderators? +5 insightful.
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They did. They got a warrant for a pen register on Snowden's account.
Lavabit then tried to comply, but they gave back an encrypted log file. The government then requested keys for the logs. But thanks tot he way Lavabit works, doing such a request would be the equivalent of releasing the entire keys to Lavabit.
So they replied they couldn't do that.
The n
Blatantly wrong (Score:5, Interesting)
In the case of Lavabit, the government demanded, and was given, a warrant for the HTTPS private key to monitor the online actions of a couple of defendants. This would allow the FBI to monitor not only the specific defendants, but all Lavabit customers.
And I want to be totally clear about this: The government asked to install a pen trap device *and* have the private keys which would have allowed it to monitor all Lavabit customers.
(Unlike phone companies, E-mail providers are under no legal obligation to make surveillance easy, or even possible, by the government.)
Third parties have a duty to assist law enforcement, but that duty does not extend "regardless of the burden involved". The ACLU argument is that giving over the private keys would have completely destroyed the Lavabit business, which was an unreasonable burden to take in assisting law enforcement.
You do when they have a warrant.
Just saying "You do when they have a warrant" is no longer sufficient. There's ample evidence that judicial oversight has been compromised by the FISA court et al., and this is a particularly strong case of government overreach.
You can't take warrants at face value any more.
Re:duty to assist law enforcement agents?? (Score:5, Interesting)
In this case - Apparently, no, he cannot.
When a court can effectively order you not to close up shop or face contempt, we have slavery for the convenience of the police, in a very real, material sense.
And y'know? I don't feel okay with that.
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It would be legal for the government to ask for copies ov individual John Doe, or even a pen recorder on that account with proper court order. Asking for keys of the sysadmin is in violation of all user's 4th ammendment rights.
Re:duty to assist law enforcement agents?? (Score:5, Interesting)
There's something broken with the public prosecution system in the US. It seems to me that prosecutors are basically promoted by comparing how much jail time they have scored in court, rather than their overall cost / benefit to the well being of society. For example a prosecutor who gives a token fine for smoking a joint in public is more valuable to society than one who insists on jail time for all drug offenses.
The appalling US jail statistics are very strong evidence that prosecutors are systematically making the wrong choices.
Re:duty to assist law enforcement agents?? (Score:4, Insightful)
But at the same time, I must also say that a lot of the problem is the laws themselves. Politicians do not want to be perceived as "soft" on crime, so the penalties for transgressions get every tougher, and more and more formerly-frowned-upon behaviors become actually illegal.
This process MUST stop at some point, and be reversed back to the point of sanity. Right now, our legal system is broken.
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Founder is not a simple employee ... (Score:2)
A corporate employee not liking how he's being used by law enforcement can, as a general matter, simply get up and walk away from the company if he wants.
In this case - Apparently, no, he cannot.
You are mistaken. The founder is a corporate officer, not a simple employee. Corporate officers have responsibilities with respect to seeing the corporation comply with the law.
Re: duty to assist law enforcement agents?? (Score:2)
I think that this is key. The Lavabit founder DID get up and walk away -- and now is under charges. I expect the ruling SHOULD be in his favor, therefore, because the government is acting against an individual citizen, not a company. But that doesn't mean that he will be free to reopen his company. It may mean that the congress may eventually find the government liable for his losses, and award some small sum in compensation. I doubt the courts ever will.
Re:duty to assist law enforcement agents?? (Score:4, Insightful)
Corporations are voluntary associations of people who do not give up their rights associating that way.
Re:duty to assist law enforcement agents?? (Score:5, Insightful)
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Corporations gain special tax and liability advantages - requiring them to give up rights is a a reasonable cost for that.
You're confusing "should be" with "is". That's not how the world works.
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Re:duty to assist law enforcement agents?? (Score:5, Insightful)
"Ah, so you're in favor of muzzling the speech rights of political parties and nonprofit watchdogs?"
No. For the moment let's leave aside Citizens United, which was grossly flawed, and which overturned centuries of precedent in order to reach an absurdly bad conclusion.
Citizens' Unions and political organizations are different from "normal" business corporations, in that they are voluntarily formed for the purpose of furthering a common goal of the members. Often (but not necessarily) a political goal. Therefore, it is valid to say that the organization or corporation represents the interest of all the people involved.
Now take a more "normal" business corporation: not all the people are there for the same reason. Some are CEOs. Some are janitors. Many of them are there for nothing but employment in their particular niche. This is DIFFERENT than the former example, because political money is being spent out of the profits of the corporation (not donations), and the money is spent in a way that only the board or CEO approves. There is nothing in this picture that suggests that the political money the corporation spends even remotely represents "the people" who make up the majority of the corporation. On the contrary, it is easy to see that a CEO might spend the money on lobbying to keep wages low, for example. There is nothing "representative" or "voluntary" about it, on the part of MOST of the people who make up the corporation.
See the difference? SCOTUS erred -- that's putting it extremely mildly -- by not, at the very least, distinguishing between incorporated citizens' organizations, and business corporations. Yet the purposes and consequences are far different.
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So, you're claiming that commercial corporations are involuntarily formed?
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"So, you're claiming that commercial corporations are involuntarily formed?"
I believe I explained my meaning adequately, if someone were to read my whole comment. I doubt the majority of readers will have any trouble understanding.
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"So I suppose that you'd support a ban on political reporting by media corporations, then? That's a for-profit business that somehow always gets a pass on these laws. What makes the New York Times editorial page valid, but a political campaign by a non-media business illegitimate?"
Give me a break. There is centuries-old legal precedent (going back to and in part even predating Common Law) saying that "The Press" is an exception.
I was speaking of generalities here.
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Hint: in a way, it's the opposite of a nitpick.
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"Those are some very fine hairs you're trying to split."
How is it "splitting hairs"?
Other than some obvious exceptions such as the press, where is the "fine point" between, say, the non-profit Consumer's Union and General Electric? Between the ACLU and Microsoft?
If that's splitting hairs, then they must be hairs the diameter of a football field.
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"You forgot one class of people in your message. You forgot shareholders. That class are the only people who's interests are represented in the furthering of the common goal you mentioned."
I wrote "the CEO or the board". Presumably the Board of Directors has the shareholders' best interests in mind.
But keep in mind all the while that those are only the owners of the corporation. They aren't "the corporation". They are not the people who make it up, and work for it, and through whose efforts the actual profit is made.
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"Only as long as it doesn't get in the way of lining their own pockets."
That's pretty much the point I was getting at.
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"requiring them to give up rights is a a reasonable cost for that."
I disagree. In fact, I strongly disagree, for multiple reasons.
First - a corporation exists at the sufferance of the people. So long as a corporation offers a service or a product that they people actually want or need, the people suffer it's existence, and in fact, subsidize that existence. But, a corporation has no "right" to exist.
Second - the PEOPLE who comprise the corporation can not be coerced or persuaded to "give up rights". Bec
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Surely corporations should at least get the vote...
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Except they don't (Score:3)
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Re:duty to assist law enforcement agents?? (Score:5, Insightful)
"Corporations are voluntary associations of people who do not give up their rights associating that way."
HOWEVER, neither does that association transfer constitutional rights to the corporation. Those rights belong to the INDIVIDUALS that make up the corporation, not to the corporation, which is a "fictitious legal entity".
Hence, a corporation can't vote, for example.
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Then it's an interesting catch 22 to ALSO say that the corporation's customers have no standing to challenge the warrants.
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Corporations are voluntary associations of people who do not give up their rights associating that way.
Incorrect. A corporation is a trick of law that makes certain economic activity more convenient. If people want to band together and make some kind of a political statement, then they can go ahead and do that without a charter from the government.
I mean, a corporation can be an entity with no employees owned by another corporation - people don't even need to be part of it.
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its also legal for medical people, and generally not enforced for reporters.
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Perfect case in point, the various anti-black laws that used to be around before the supreme court finally shot them down.
Even the supreme court screws up.
Also, laws often exist and are used for some time, often many decades, before someone starts perverting them and employing them in ways they weren't supposed to be used. There has been a huge upswing in abuse of various
Question (Score:2)
Lavabit gave up the encryption keys after the government obtained court orders – including a grand jury subpoena and a stored communications act –and an authorised search warrant. The court denied Lavabit's motion to quash the warrants, and when the company failed to do so by the stipulated deadline, the court held Lavabit in contempt.
"The district court's contempt holding should be reversed, because the underlying orders requiring Lavabit to disclose its private keys imposed an unreasonable burden on the company. Although innocent third parties have a duty to assist law enforcement agents in their investigations, they also have a right not to be compelled "to render assistance without limitation regardless of the burden involved", ACLU said in its brief.
The first sentence seems to say that Lavabit would give up the encryption keys of specific users in response to a warrant. But, then the next few sentences seem to say that Lavabit fought the warrants and then ended up in "contempt of court" and argues that giving up the encryption keys "imposed an unreasonable burden on the company". (Presumably, giving up the encryption details of any particular client, even in response to a warrant could
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Wait a second... (Score:3)
So, I'm to believe that you can be charged with contempt for not providing something that you don't have?
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So, I'm to believe that you can be charged with contempt for not providing something that you don't have?
No. They wanted Lavabit's SSL keys.
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How did the mail get into Lavabit's servers in the first place? Did Lavabit costumers send their public keys to all their correspondence partners and ask them to encrypt before sending?
the solution is so simple it almost hurts (Score:3)
Re:lavabit should have helped the first time (Score:5, Insightful)
The argument is that lavabit was asked to sabotage it's prime selling point.
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And if they had done it quietly, they would still be in business. Lavabit sabotaged their own business to make a stand. I think it's a foolish stand, because their business model was fundamentally flawed from a security standpoint: they had users' encryption keys.
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Until somebody finds out and they get sued into oblivion and a reputation for all involved that impedes all future efforts. With all the leaks going on the risk of being a weasel and pretending everything was fine was too great. By closing the founder gets to keep his shirt and his former employees don't have to pretend they never worked there if they want to find a job.
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only after lavabit refused to cooperate in giving them access to a few accounts. only then the feds asked for the house keys
Re:lavabit should have helped the first time (Score:5, Informative)
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You are correct that the details of the whole situation are not all out yet, but when everything comes to light, it's usually the authoritarian governments acting in the shadows that come out as the bad guys. With the given eviden
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Only if by 'refused' you mean in the sense that a man may 'refuse' to flap his arms vigorously so as to hover 3 feet off of the ground.
They had no way to comply without dismantling all security for all users.
Re:lavabit should have helped the first time (Score:5, Interesting)
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And I can remember black and white films of Joe Mc Carthy shouting "I have to proof that you are communist right here" while holding blank pages of paper.
Bottom line, Snowden embarrassed the FBI, NSA, Justice Department, and the POTUS. This is nothing more than retribution because of the fact that they can't get Snowden, so, they have to take it out on Snowden's email provider.
I think Lavabit is about to kick the FBI, NSA, and Justice Department squarely in the balls and we can hopefully get some caselaw g
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Perhaps some of that information Snowden ha
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If they knew it all before, they would have done it before
No they wouldn't. They'd have kept their knowledge secret and used it to pass misleading information - just enough true that we'd believe it, just enough false (or through omission) that we make a wrong decision based on it.
Changing things because they're exposed and no longer useful looks an awful lot like changing things because you just discovered you were insecure...
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You actually can to quite a bit. Nazi Germany was largely the result of the Treaty of Versailles. Pearl Harbor was the result of us not being neutral in the war, and it wasn't hard to see something along those lines coming. Most terrorist acts in the last 50 years could be tracked to US dickery of some form or another if you are willing
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A government cheerleader licking the government's boots? Why, who would have thought!?
when the FBI wanted access to only a few accounts. instead they blew them off and brought this on to themselves
Well, that doesn't seem very appropriate. Why is the government focusing on revenge?
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Why is the government focusing on revenge?
Sending a message?
Re:lavabit should have helped the first time (Score:4, Insightful)
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We could instead put them in containment vessels and stick them on a ring world, then extinct the galaxy... You know, because if we had containment vessels impervious to galaxy death ray, we wouldn't just climb inside, detonate the nuke then repopulate. Fucking moronic Bungie writers.
Lavabit did offert to help (Score:5, Informative)
The FBI was not interested unless the could get access to his private SSL key. He offered several times to help them install their pen tap and trace device but the FBI was not interested unless they could load it with his private SSL key.
He was also found in contempt of court after he provided his private SSL keys.
This was a case of the FBI picking on someone so hard they figured they had to carry guns to meetings with him when he was being cooperative.
This was the actions of an individual who honestly thought there was a mix up and once everything was explained to everyone (ie the Judge or the FBI officiers) this nonsense would have gone away. It didn't.
And do you want to live in a world where a secret court can compel any and every secret private key? It totally defeats the entire security architecture of the internet as it now stands. This is bad juju.
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where does it say have to give them my keys? (Score:2)
Re:where does it say have to give them my keys? (Score:4, Informative)
for pity sake, why will slashdot not recognise simple linefeeds?
Select "Plain Old Text" and it will, and you can still use HTML (and the < still takes an < to display).
<b> Bold</b>
<i> italic</i>
<a href="http://slashdot.org"> Link [slashdot.org]</a>
Line feeds used, no <P> or <br>
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They don't. All they have are the keys that protect the metadata. However that information is quite valuable in the process of tracking the progress of the mail through the network.
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What does the 3rd Amendment have to do with it???
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That's really grabbing at straws. Several things would have to be resolved for that to stick.
1. Is the FBI and / or the court considered "soldiers"?
2. Is an email service considered "home"?
3. Is the Supreme Court likely to make such a broad interpretation especially since they tend to take a very narrow view on just about everything?
4. And lastly, is it even likely to make it that far?
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Then you would still have to overcome the "but in a manner to be prescribed by law." part. Since the "national security" part (I am assuming at least in the Patriot Act and / or Homeland Security Act) would satisfy that.
No, a better way would be to take back our Congress and get them to revoke those acts that allow stuff like this. Of course, that requires a ground swell against the established parties and is likely to not succeed because of the campaign financing / media control mess.
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While I agree that Congress would be the ideal vehicle, SCOTUS could and should shoot this kind of bullshit down, since these acts are not constitutional.
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If a corporation is a person and a single pot plant in someone's living room is under federal jurisdiction because it is conceivable that it might one day be taken across state lines, I don't see why it shouldn't apply.
Naturally, it would never get through the courts.
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