Beta
×

Welcome to the Slashdot Beta site -- learn more here. Use the link in the footer or click here to return to the Classic version of Slashdot.

Thank you!

We are sorry to see you leave - Beta is different and we value the time you took to try it out. Before you decide to go, please take a look at some value-adds for Beta and learn more about it. Thank you for reading Slashdot, and for making the site better!

Lavabit Loses Contempt Appeal

Unknown Lamer posted about 7 months ago | from the don't-leave-your-lawyer-at-home dept.

The Courts 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....'"

Sorry! There are no comments related to the filter you selected.

All it takes is one criminal now? (4, Informative)

brainboyz (114458) | about 7 months ago | (#46769099)

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:All it takes is one criminal now? (2, Insightful)

cold fjord (826450) | about 7 months ago | (#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.

Re:All it takes is one criminal now? (0)

Anonymous Coward | about 7 months ago | (#46769895)

I would have preferred this outcome for Lavabit anyway to be honest. Help Snowden and shutdown with honour versus rat one person out and stay silent allowing people to assume that your secure when you are in fact not.

Re:All it takes is one criminal now? (3, Insightful)

fustakrakich (1673220) | about 7 months ago | (#46770205)

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:All it takes is one criminal now? (1, Insightful)

cold fjord (826450) | about 7 months ago | (#46770325)

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

Re:All it takes is one criminal now? (1)

fustakrakich (1673220) | about 7 months ago | (#46770519)

It's called a scam. They should have pulled out sooner :-)

Re:All it takes is one criminal now? (0)

Anonymous Coward | about 7 months ago | (#46770735)

It's called a scam. They should have pulled out sooner :-)

As your father should have.

Re:All it takes is one criminal now? (2)

fustakrakich (1673220) | about 7 months ago | (#46770933)

Don't start with me, mother... you had your chance

Re:All it takes is one criminal now? (1)

cold fjord (826450) | about 7 months ago | (#46770755)

Finally! Something we can agree on! ;)

Re:All it takes is one criminal now? (1)

spire3661 (1038968) | about 7 months ago | (#46772869)

This is the problem. It should not be illegal to provide an untraceable communication system..

Re:All it takes is one criminal now? (1)

Anonymous Coward | about 7 months ago | (#46770465)

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.

Re:All it takes is one criminal now? (0)

Anonymous Coward | about 7 months ago | (#46772371)

Good for them. It's the fucking internet, how bad could it really have been?

Re:All it takes is one criminal now? (3, Informative)

Anonymous Coward | about 7 months ago | (#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:All it takes is one criminal now? (1)

BiIl_the_Engineer (3618863) | about 7 months ago | (#46770307)

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.

Re:All it takes is one criminal now? (2)

SpankiMonki (3493987) | about 7 months ago | (#46770627)

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 applaud Levison's actions to protect his customers. After all, they used his service specifically for it's privacy.

Re:All it takes is one criminal now? (4, Informative)

parkinglot777 (2563877) | about 7 months ago | (#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 even more (using politic), he then gave up. However, the Government said it was too late and he is now in contempt of the court.

I think you could go either way if you take a side. I would say they both are wrong; however, the Government went over board a bit. In the end, they should stop pursuing a law suit against Lavison because of what was lost. I understand that they wanted to make it as a precedent, it is still too much in the end...

Re:All it takes is one criminal now? (1)

SpankiMonki (3493987) | about 7 months ago | (#46773427)

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.

Re:All it takes is one criminal now? (4, Insightful)

spire3661 (1038968) | about 7 months ago | (#46772935)

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.

Re:All it takes is one criminal now? (1)

jxander (2605655) | about 7 months ago | (#46770859)

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? (4, Insightful)

TechyImmigrant (175943) | about 7 months ago | (#46769103)

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

Re:Procedural Rules? (4, Insightful)

jratcliffe (208809) | about 7 months ago | (#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:Procedural Rules? (2, Insightful)

TechyImmigrant (175943) | about 7 months ago | (#46769331)

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!

Re:Procedural Rules? (2)

LordLimecat (1103839) | about 7 months ago | (#46769511)

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.

Re:Procedural Rules? (1)

TechyImmigrant (175943) | about 7 months ago | (#46770443)

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

Re:Procedural Rules? (2)

tirefire (724526) | about 7 months ago | (#46770715)

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 present, and I was actually just playing hooky the day I stayed home! While everyone else was bitching and moaning about how much they were procrastinating on their presentation, I was lost in this story of a poor old drifter without much book-learnin' showing supreme court justices how shit should get done in America.

I learned some time later that on the day students picked their court cases, fully half of the class demanded to research Miller v. California ("you know, the one about PORNOGRAPHY... tee-hee!"). There was such a stalemate, I think the teacher finally had them draw straws.

Re:Procedural Rules? (2)

StevenMaurer (115071) | about 7 months ago | (#46770239)

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 fraud, engage in money laundering, and a host of other schemes that hurt people, should all have an absolute right to keep their crimes secret, well sorry - you live in a first world country.

Re:Procedural Rules? (2)

TechyImmigrant (175943) | about 7 months ago | (#46770539)

Read TFA. It suggests otherwise.

Re:Procedural Rules? (0)

Anonymous Coward | about 7 months ago | (#46769477)

Any excuse at all to avoid telling the government to stop violating the Constitution.

Which is how we're making decisions like "yeah, he was illegally wiretapped, but we're going to convict him anyway because the lawyer coughed at the wrong time"

Re:Procedural Rules? (0)

Anonymous Coward | about 7 months ago | (#46769571)

When you're the one on trial, and it's the cop that coughed at the wrong time, you're going to be pretty happy that we make everybody follow the rules, regardless of how important they think that they are. (Well, unless Rhenquist or Alito wrote the decision, then cops can pretty much do whatever.)

Do we design secure systems that let people enter their passwords whenever they want, followed by their SecureID then their username? No. We set rules and people follow them, or they don't get access to their accounts. If you think your 'let people follow whatever rules they want, and then just let things work out" system is better, try implementing it.

Re:Procedural Rules? (0)

Anonymous Coward | about 7 months ago | (#46770319)

we make everybody follow the rules

God forbid someone think the Constitution is a rule or something. Highest recommendation of the land.

Re:Procedural Rules? (1)

starless (60879) | about 7 months ago | (#46770989)

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.

Re:Procedural Rules? (1)

Rich0 (548339) | about 7 months ago | (#46771127)

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 that you end up with a court system that merely follows a process and metes out the result, without that much regard to the fairness of the result.

When an innocent person ends up in jail, the question is why did the system fail and how can it be fixed, not whether the system failed. The latter is self-evident.

Re:Procedural Rules? (0)

Anonymous Coward | about 7 months ago | (#46772319)

The law is nothing more than mans attempt to validate, or vilify, human behavior by classification and documentation. If Justice and individual rights protection were in fact the goal, we wouldn't have 90% of the procedural mess we do now, and 50% of the laws on the books would be illegal. Yet, here we are. With things getting worse.

I won't go down the rabbit hole that is entity or social law. (See Incorporation, non-profit, not-for-profit, Gov., Education, Tax-assist ...)

Re:Procedural Rules? (0)

Anonymous Coward | about 7 months ago | (#46769311)

Given enough time, legal systems involve into an elaborate equivalent of the law of the strongest.

Re:Procedural Rules? (1)

Anonymous Coward | about 7 months ago | (#46769565)

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 cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!

Re:Procedural Rules? (5, Interesting)

Zontar_Thing_From_Ve (949321) | about 7 months ago | (#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:Procedural Rules? (2, Informative)

Anonymous Coward | about 7 months ago | (#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.

Re:Procedural Rules? (0)

Anonymous Coward | about 7 months ago | (#46771363)

in criminal cases you are assigned a free lawyer if you are the defendant.

And it's not a case of most expensive lawyer knows the most loopholes. Sure quality of lawyers varies but a lot of the value of a lawyer is just that they know where to look up the correct procedures and by virtue of passing the bar exam are certified with some proficiency at specifying their arguments precisely in legalese.

It's a lot like programmers really. Sure you (as a random person with no programming experience) could sit down with "Java for complete morons" and write a program, but if your program is nontrivial that's probably not going to work and hiring a trained programmer is a good idea.

Re:Procedural Rules? (0)

Anonymous Coward | about 7 months ago | (#46771413)

Winner, winner, chicken dinner.

Re:Procedural Rules? (0)

Anonymous Coward | about 7 months ago | (#46773047)

Fucking A, use some periods. I agree with much of what you said. I would have even refrained from being a grammar nazi. The run on sentences just did me in.

Re:Procedural Rules? (1)

jfdavis668 (1414919) | about 7 months ago | (#46770489)

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.

Re:Procedural Rules? (1)

Artifakt (700173) | about 7 months ago | (#46770565)

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 with abortion rights if someone as unsympathetic as Larry Flynt had had the same courage Flynt did for his famous case, proceeded openly and still won, or alternately if a very sympathetic woman with more recognition of how political groups on both sides might try to twist her image had done the same? Would either situation have made any difference in the current public perception?
         

Re:Procedural Rules? (1)

amiga3D (567632) | about 7 months ago | (#46770621)

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.

Re:Procedural Rules? (1)

bill_mcgonigle (4333) | about 7 months ago | (#46773271)

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.
 

Proletarian revolution the only solution (3, Insightful)

For a Free Internet (1594621) | about 7 months ago | (#46769115)

Smash the tyranny of bourgeois oppression with workers power!

Re:Proletarian revolution the only solution (-1)

Anonymous Coward | about 7 months ago | (#46769429)

+1

Here come the flames and trolls.

Re:Proletarian revolution the only solution (0)

Anonymous Coward | about 7 months ago | (#46770805)

You sound like a real dumb-shit. No, really - not your run of the mill dumb-shit, I mean a _real_ dumb-shit.

The Real Cost (0)

Anonymous Coward | about 7 months ago | (#46769285)

What's not being talked about is the real cost of these draconian policies: the fact that it's driving more and more tech firms/jobs overseas to countries that are less faccistic.

Re:The Real Cost (0)

Anonymous Coward | about 7 months ago | (#46769325)

Then Interpol does the same thing. Hushmail isn't a US company, but they definitely were not immune to the long arm of the law.

Re:The Real Cost (1)

K. S. Kyosuke (729550) | about 7 months ago | (#46769629)

Well, that's why you have to decentralize! Let them deal with millions of individual users instead.

Slashdot is in contempt (0)

Anonymous Coward | about 7 months ago | (#46769323)

Slashdot is in contempt of their users for forcing Beta on us. Down with Slashdot! Down with Dice!

What are the "procedural mistakes"? (5, Informative)

meustrus (1588597) | about 7 months ago | (#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.

Re:What are the "procedural mistakes"? (4, Interesting)

gnasher719 (869701) | about 7 months ago | (#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.

Re:What are the "procedural mistakes"? (0)

Anonymous Coward | about 7 months ago | (#46769793)

"... so no, I won't do that", then chances are your appeal won't be discarded for the same reason as this.

FTFY, IANAL

Re:What are the "procedural mistakes"? (2)

westlake (615356) | about 7 months ago | (#46770987)

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.

Re:What are the "procedural mistakes"? (0)

Anonymous Coward | about 7 months ago | (#46771879)

That is my understanding of how contempt works, basically, yes.

Way to lose an easy case... (5, Interesting)

Anonymous Coward | about 7 months ago | (#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:Way to lose an easy case... (2, Insightful)

Anonymous Coward | about 7 months ago | (#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.

Re:Way to lose an easy case... (0)

Anonymous Coward | about 7 months ago | (#46770035)

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.

Re:Way to lose an easy case... (0)

Anonymous Coward | about 7 months ago | (#46770985)

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.

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.

Think about what you just posted. He did not say that, essentially or not. It is you that are adding that to the message, showing the lack of diligence for ethics he is deriding.

Not gonna happen my friend.

Bad grammar, worse character, and being a petulant child. The declination on your moral compass needs significant adjusting.

Re:Way to lose an easy case... (1)

amiga3D (567632) | about 7 months ago | (#46771013)

People fail to understand. The legal system is not about right or wrong. That's where they get lost, it's about legality. The rules are more important than anything else. This is why lawyers are almost universally hated. To normal people it's about what's right but in the courts it's about what's legal.

Re:Way to lose an easy case... (1)

Darinbob (1142669) | about 7 months ago | (#46772461)

People have to get the legislators to make laws saying what is right or wrong. The legal system is only there to decide whether those laws were followed correctly or not and to adjudicate in cases of disputes over the law. Thus the anger of the people needs to be directed towards congress and not the judges.

Re:Way to lose an easy case... (3, Insightful)

Rich0 (548339) | about 7 months ago | (#46771255)

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.

Re:Way to lose an easy case... (0)

Anonymous Coward | about 7 months ago | (#46773059)

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.

True. But the defendant doesn't get to define right and wrong. Many murderers don't think they did anything wrong. You might not think it's wrong to refuse a court order. That doesn't make either right.

Re:Way to lose an easy case... (2)

KliX (164895) | about 7 months ago | (#46771401)

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?

Re:Way to lose an easy case... (1)

dcollins117 (1267462) | about 7 months ago | (#46771521)

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.

Re:Way to lose an easy case... (0)

Anonymous Coward | about 7 months ago | (#46771873)

Sometimes I wonder if we should drop the pretenses and go with a wergild system. Pay the fee, you are innocent. Can't pay, guilty.

Re:Way to lose an easy case... (0)

Anonymous Coward | about 7 months ago | (#46772015)

I say we should go with trial by combat. No representatives, just plaintiff v. defendant, unarmed.

If it's company suing company - let CEOs go at it (inb4 "Nikolai Valuev named next CEO of Apple, Inc."), or may be whole board.

It would not only simplify it all, but also make the courts actual money-generators with ticket sales, instead of money-sinks.

Re:Way to lose an easy case... (1)

RenderSeven (938535) | about 7 months ago | (#46769873)

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

Bonus points for an obscure yet relevant Firefly reference!

Re:Way to lose an easy case... (0)

Anonymous Coward | about 7 months ago | (#46770099)

I think it was more sudden but inevitable than obscure yet relevant. But hey - I've got big certificates that prove I'm a lawyer, but nothing that proves my geek cred other than Firefly references and an enormous body of comic book lore. (Well, I guess I've got a wall of games and IT certs as well, but Firefly is better.)

Re:Way to lose an easy case... (0)

Anonymous Coward | about 7 months ago | (#46770225)

Good, we can give him the points you just lost for explaining the reference.

Re:Way to lose an easy case... (0)

Anonymous Coward | about 7 months ago | (#46770455)

Is there any more of a protected, rent-seeker class than the legal profession? Apart from politicians?

Re:Way to lose an easy case... (1)

amosh (109566) | about 7 months ago | (#46770603)

Yes - high-speed traders.

But aside from that, I'm not going to lie - in a lot of ways, you are absolutely right. Lawyers designed the system, and we designed it so that we would always have a place in it where we got to make enormous amounts of money without having to lift any heavy items.

But you know what? The whole system is worth it because the lawyers who DO actually commit themselves to do good do so much good, for so many people, that I think sometimes it's hard for people to understand. Who were the attorneys in Loving v. Virginia? (Striking down laws against interracial marriage.) I have studied the case extensively, and I have no clue. Miranda v. Arizona? Brown v. Board? (Well, okay, I know that one, it was Thurgood Marshall, at least in the 2nd part of the case.)

The people who did these things did tremendous amounts of public good, for little compensation. It's worth the dead-weight loss lawyers build into the rest of the system to get these people.

Re:Way to lose an easy case... (1)

Rinikusu (28164) | about 7 months ago | (#46772729)

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?

Re:Way to lose an easy case... (1)

sed quid in infernos (1167989) | about 7 months ago | (#46773407)

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.

A remarkable order. (1)

Anonymous Coward | about 7 months ago | (#46769489)

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.

Re:A remarkable order. (3, Insightful)

danheskett (178529) | about 7 months ago | (#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 :-( (5, Insightful)

Anonymous Coward | about 7 months ago | (#46769677)

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

Re:I miss Groklaw :-( (1)

sam_nead (607057) | about 7 months ago | (#46770337)

If I had mod points then one would be yours. "Wahhhhh!", indeed.

Re:I miss Groklaw :-( (1)

u38cg (607297) | about 7 months ago | (#46770885)

Umm, she shut up shop because of Snowden.

Re:I miss Groklaw :-( (1)

DrJimbo (594231) | about 7 months ago | (#46773121)

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.

Demonstrates the futility of opposition.. (5, Informative)

danheskett (178529) | about 7 months ago | (#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.

Re:Demonstrates the futility of opposition.. (1)

Anonymous Coward | about 7 months ago | (#46770393)

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.

I thought this was like Snob Appeal (0)

Anonymous Coward | about 7 months ago | (#46769753)

although I'm not sure how contempt appeal would function and how you would lose it.
Is this a factor for Oracle, for instance?

judge was clearly incompetent (2)

Karmashock (2415832) | about 7 months ago | (#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.

Also Disturbing (4, Insightful)

danheskett (178529) | about 7 months ago | (#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.

Re:Also Disturbing (1)

Tokolosh (1256448) | about 7 months ago | (#46770631)

Agreed.

"The medium is the message." - Marshall McLuhan

Re:Also Disturbing (1)

amosh (109566) | about 7 months ago | (#46770795)

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' powers are virtually unlimited - so that domain is made as small as possible.

At very least, allowing judges to be proactive would require a massive rewriting of laws, starting with the constitution and working your way down.

Re:Also Disturbing (2)

danheskett (178529) | about 7 months ago | (#46770895)

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 is that? Article III establishes the Judicary, but does not in any way circumscribe the power of the Courts, or make them reactive in nature. There is nothing even suggesting that a suit must be made - only that the Supreme Court has original jurisdiction.

The entire concept of a reactive, ex-post facto review based Court is entirely based on statue and tradition (Marbury v. Madison et all). There is nothing inherently anti-Constitutional about, for example, the Court being given, by Congress, an ad-hoc review power of any government action. Or a pre-enactment review authority over all legislation.

At very least, allowing judges to be proactive would require a massive rewriting of laws, starting with the constitution and working your way down.

I disagree. Most of it is all stacked precedent and not black letter law.

Re:Also Disturbing (2)

amosh (109566) | about 7 months ago | (#46771097)

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

It's baked in.

Re:Also Disturbing (1)

danheskett (178529) | about 7 months ago | (#46771699)

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 factly that it will not use the SSL keys to do anything to the other 400,000 customers of Lavabit's service, but that is (a) not binding and (b) not believable. It would be ideal if a Judge, hearing such a claim, pro-actively took steps to either force the Government to adhere to that (i.e. consent agree) or to in some other way hold it harmless. It is really in a way too bad that the Government can't usually be forced to post a bond. Levinson was fairly clearly concerned that the Government would overstep their authority, leaving his customers damaged and himself without recourse. This was the nature of his request to provide the data after the fact (after he could verify it was only targeted to one customer who under investigation). The Judge immediately dismissed his concern because the Government stated - in a non-binding, non-policy specific way - that they would only tap one customer.

Anyone want to buy a bridge? (0)

Anonymous Coward | about 7 months ago | (#46770163)

Very interested in this... it will set precedents I think..

Stuck in my mind is who this LavaBit is to give out MY SSL key in the first place?

They are not the rightful owner of that key and are not allowed to give it out, I do not give permission for them to do so! If someone needs that key, they can ask ME and I will think on it. If this somehow is the way things work these days then I have many bridges to sell to you.. I have a great special on the Brooklyn Bridge!

Secondly, this whole 'contempt' business is ridiculous! It's such an easy/weak move... You can slap that on anything and to me is like a joker card that we probably should remove from the deck. Refusing to GIVE out self 'incriminating' information ("if we give this key, all our customers are going to be worried and cancel, leaving us bankrupt") should not lead be labelled 'contempt' if both parties do not agree that it is contempt.

The Gov't could have done so much more:

1) Build their OWN supercomputer to crack the key
2) Shoot a puppy every 3 seconds that Snowden does not give himself up
3) Have Janet Yellen run the presses a little longer and BUY the key from Lavabit for 1B dollars (takes just 1/2 day of running the presses)

Lastly... because all this irks me so much, but I was wondering if they add in more info with the disclosure of keys in case they decide to do so. Always wondered about that... basically have a nice Perry Mason style court session first explaining how the encryption works on a 'random' customer preferable some politician... (since privacy doesn't matter, encryption doesn't matter, so lets start with the private chats of Senator so and so...)

Don't know... Media says Snowden is a hero and Gov't wants him... that's at least healthy...

Then again.. with my own arguments as stated here, Snowden is not the one who should have outed all this stuff. It was not his bridge to sell either.

Re:Anyone want to buy a bridge? (2)

coldfarnorth (799174) | about 7 months ago | (#46770919)

Very interested in this... it will set precedents I think..

Wrong. This was decided solely based on precedent. If you RTFA, the issue is that Lavabit attempted to raise arguments in the appeal that were not raised in the initial case (and in some cases, were directly counter to some of Lavabit's statements). ANY other decision would have broken with precedents, some of them long established. So, there's no precedent worth noting here. The judge explicitly said that the potential ramifications of the case are still unclear and need further litigation (which Lavabit has the option to do) before longstanding rules are ignored on Lavabit's behalf.

This is Yet Another Example Of Why You Should Hire a Good Lawyer When Dealing With The Feds In Court. If Lavabit had good advice at the earlier hearings, this appeal could have been much more interesting, and might well have gone the other way.

And for your other comments:
1) Bullshit. It's no more your SSL key than the IP used in your cell phone is yours. In fact it was Lavabit's SSL key, (Pay attention to this next part) AND THEY USED THE SAME KEY TO ENCRYPT TRAFFIC FROM ALL USERS OF THE MAIL SERVICE - not the brightest idea, hmmmmm? And as a general note: Your ignorance of the details does not mean that the world works the way you wish it would.
2) Contempt orders serve a valid purpose. You do not appear to know what that is. We can discuss your opinions on Contempt orders when you demonstrate otherwise.
3) RTFA. The Gov't is not required to do more, and if they did, you'd be bitching and moaning about their use of your tax dollars, the breed of puppy used, or inflation, respectively.
4) RTFA. The government requested the key because Lavabit was sending them encrypted data. They had the statutory authority to require Lavabit to provide all necessary help to retrieve unencrypted data, and since Lavabit was not providing it unencrypted, they asked for the appropriate key.

For the record: Lavabit could have avoided a lot of this posturing, and risked compromising fewer people, if it had used different encryption keys for different users - but they didn't . . .

Re:Anyone want to buy a bridge? (0)

Anonymous Coward | about 7 months ago | (#46771275)

Erm, this is probably an uninformed question (I've only been following the case peripherally), but I thought (and the first link in the summary suggests) that Lavabit didn't have any way to decrypt stuff in the first place, even if they'd wanted to. Unfortunately, that Wired article is confusing on this point -- it states,

But Lavabit offered paying customers a secure email service that stores incoming messages encrypted to a key known only to that user. Lavabit itself did not have access.

but then, two paragraphs later,

“The representative of Lavabit indicated that Lavabit had the technical capability to decrypt the information, but that Lavabit did not want to ‘defeat [its] own system,’” the government complained.

So which is it?? If all Lavabit was doing (I never used the service, so I don't know) was providing a mail stop, whereas all the encryption/decryption was done on the client's end, then how could handing over their (Lavabit's) half of a keypair have accomplished anything useful?

Sorry if this is an obtuse question; I read TFA and all the links, but I'm still confused about exactly what happened here.

Thanks,

-CF

They made the wrong argument (0)

Anonymous Coward | about 7 months ago | (#46770303)

Lababit should have claimed it was a matter of national security, not public concern and they would have won the appeal.

encrypted email (1)

Khashishi (775369) | about 7 months ago | (#46770947)

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.

If no one knows what "pen register demand" is... (1)

ebyrob (165903) | about 7 months ago | (#46771313)

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

woah woah woah slow down here (1)

ganjadude (952775) | about 7 months ago | (#46772353)

'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?

Get rid of web based e-mail and use GnuPG clients (0)

Anonymous Coward | about 7 months ago | (#46773253)

This wouldn't be an issue if the e-mail server never had access to an unencrypted e-mail.

procedure uber alles (0)

Anonymous Coward | about 7 months ago | (#46773323)

when procedure and the denizens of The Bar are more important than the facts, there is a problem with the system. By Lawyers, For Lawyers.

and before someone goes "if you ever need a lawyer you'll wish you had one!" I reply, "the only reason I'd need one is because they created the situation in the first place!".

I'd use the same logic the anti-gun crowd uses. Ban lawyers, it is access to lawyers by the law-abiding that leads to misuse of lawyers...

Load More Comments
Slashdot Login

Need an Account?

Forgot your password?