Lavabit Loses Contempt Appeal 128
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....'"
Way to lose an easy case... (Score:5, Interesting)
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:What are the "procedural mistakes"? (Score:5, Interesting)
Re:Procedural Rules? (Score:5, Interesting)
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.