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ACLU: Lavabit Was 'Fatally Undermined' By Demands For Encryption Keys

Soulskill posted about a year ago | from the understatement-of-the-century dept.

Encryption 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."

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duty to assist law enforcement agents?? (5, Insightful)

fustakrakich (1673220) | about a year ago | (#45247453)

Fuck that! I have no such obligation

Re:duty to assist law enforcement agents?? (0)

Anonymous Coward | about a year ago | (#45247511)

Your obligation is minimal compared to that of a corporation. Unlike you, a corporation has no freewill and cannot be enslaved to the same extent. 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.

I'm not trying to defend the government's actions here. But if you get all up-in-arms about the idea of corporate personhood, then you better make sure to maintain and defend some distinctions between a court forcing a person to do something, and a court forcing a corporation to do something.

Re:duty to assist law enforcement agents?? (0)

Anonymous Coward | about a year ago | (#45247539)

"Corporations are people too." - Mittens

Re:duty to assist law enforcement agents?? (4, Insightful)

Impy the Impiuos Imp (442658) | about a year ago | (#45247545)

Corporations are voluntary associations of people who do not give up their rights associating that way.

Re:duty to assist law enforcement agents?? (5, Insightful)

msauve (701917) | about a year ago | (#45247659)

I disagree. Corporations gain special tax and liability advantages - requiring them to give up rights is a a reasonable cost for that. That in no way prevents people from associating in other ways which lack such legal advantages while retaining their rights.

Re:duty to assist law enforcement agents?? (-1, Offtopic)

msauve (701917) | about a year ago | (#45247711)

I see someone has modded the above as "troll." I can only assume that they agree with Citizens United [wikipedia.org] .

Re:duty to assist law enforcement agents?? (2, Insightful)

phantomfive (622387) | about a year ago | (#45247837)

If a bunch of people get together, they still have the right to freedom of speech. What difference does it make if they collectively get a tax refund?

Re:duty to assist law enforcement agents?? (0)

Anonymous Coward | about a year ago | (#45247745)

Saying it doesn't make it so.

Re:duty to assist law enforcement agents?? (1)

mcgrew (92797) | about a year ago | (#45248075)

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.

Re:duty to assist law enforcement agents?? (2)

demonlapin (527802) | about a year ago | (#45248449)

Ah, so you're in favor of muzzling the speech rights of political parties and nonprofit watchdogs? How do you think the ACLU, political parties, Brookings, AEI, the NRA, and everything else down to local churches are organized? As corporations.

Re:duty to assist law enforcement agents?? (5, Insightful)

Jane Q. Public (1010737) | about a year ago | (#45248541)

"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.

Re:duty to assist law enforcement agents?? (1)

msauve (701917) | about a year ago | (#45248549)

"Citizens' Unions and political organizations are different from "normal" business corporations, in that they are voluntarily formed"

So, you're claiming that commercial corporations are involuntarily formed?

Re:duty to assist law enforcement agents?? (4, Insightful)

Jane Q. Public (1010737) | about a year ago | (#45247817)

"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.

Re:duty to assist law enforcement agents?? (0)

Anonymous Coward | about a year ago | (#45247901)

"Hence, a corporation can't vote, for example."

Snarky reply #1. Not yet.

Snarky reply #1. Considering the effectiveness they already have, it doesn't matter.

Re:duty to assist law enforcement agents?? (1)

shentino (1139071) | about a year ago | (#45248049)

Then it's an interesting catch 22 to ALSO say that the corporation's customers have no standing to challenge the warrants.

Re:duty to assist law enforcement agents?? (5, Interesting)

pla (258480) | about a year ago | (#45247617)

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.

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.

Re:duty to assist law enforcement agents?? (1)

Technician (215283) | about a year ago | (#45247795)

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?? (5, Interesting)

TapeCutter (624760) | about a year ago | (#45248211)

Non-American here, but I believe that the law that protects a sysadmin's keys is the same law Dick Cheney relied on to protect the combination to his infamous office safe. I understand these laws need to be balanced against people simply obstructing justice, but it's pretty clear and there seems plenty of precedent that what's in your head is protected information. So why don't courts simply dismiss these case with prejudice? Why do they have to drag it on for years, only to come up with the same fucking answer after a couple of million dollars and a handful of shattered lives?

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?? (3, Insightful)

Jane Q. Public (1010737) | about a year ago | (#45248589)

It pains me to agree with you but agree with you I must. :) In general, prosecutors in the U.S. have had too much discretionary power. We had problems in my own community with a prosecutor that unquestionably abused his position.

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.

Re: duty to assist law enforcement agents?? (1)

MickLinux (579158) | about a year ago | (#45248125)

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?? (1)

Shavano (2541114) | about a year ago | (#45247533)

You do when they have a warrant.

Re:duty to assist law enforcement agents?? (0)

Anonymous Coward | about a year ago | (#45247573)

Warrant from real court? Or one from make believe court?

Re:duty to assist law enforcement agents?? (3, Insightful)

msauve (701917) | about a year ago | (#45247577)

You don't when that warrant is ethically and Constitutionally wrong, doubly so when it infringes on the rights of innocent others. Just because the Emperor says he's wearing clothes, doesn't make it so.

Sure, they'll get pissed and come at you - but that doesn't change the fact that it's the right thing to do.

Re:duty to assist law enforcement agents?? (1)

truedfx (802492) | about a year ago | (#45247583)

Do you? Or is it simply in your best interests to do so, since they would otherwise be allowed to use force to get what they need?

Re:duty to assist law enforcement agents?? (2)

Shavano (2541114) | about a year ago | (#45247627)

Is there a difference between what you can legally be compelled to do and your duty?

Re:duty to assist law enforcement agents?? (5, Interesting)

Jane Q. Public (1010737) | about a year ago | (#45247719)

"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.

Re:duty to assist law enforcement agents?? (1, Informative)

Anonymous Coward | about a year ago | (#45248033)

First dictionary definition of duty: a moral or legal obligation.

As usual, Jane talks out of his ass with no understanding of even the most basic things.

Re:duty to assist law enforcement agents?? (1)

TapeCutter (624760) | about a year ago | (#45248433)

Actually, Jane is spot on this time. You seem to have made the same mistake she routinely makes, you failed to properly comprehend* what was written and judged the post by it's source. We all do it to some degree.

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: table manners.

Re:duty to assist law enforcement agents?? (1)

TapeCutter (624760) | about a year ago | (#45248371)

Well said Jane, I'd mod you up if you were not already at +5 (note user id :). This is the same reason politicians are regarded as "public servants" in Oz/UK. Their job is to serve the public, and although they have serious problems focusing on that, the other way around is basically the definition of "oppression".

Re:duty to assist law enforcement agents?? (2)

Jane Q. Public (1010737) | about a year ago | (#45247773)

"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.

Re:duty to assist law enforcement agents?? (1)

BlueStrat (756137) | about a year ago | (#45247935)

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 government.

Strat

Re:duty to assist law enforcement agents?? (3, Insightful)

epyT-R (613989) | about a year ago | (#45247621)

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.

Re:duty to assist law enforcement agents?? (1, Redundant)

Jane Q. Public (1010737) | about a year ago | (#45247749)

"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.

Re:duty to assist law enforcement agents?? (2)

Xicor (2738029) | about a year ago | (#45247779)

the problem isnt that the warrants arent signed, the problem is that they are signed by a make-believe judge in a make-believe court. the government claims this court exists, but we have no actual proof that any real judging goes on in this "court"

Re:duty to assist law enforcement agents?? (3, Interesting)

Jane Q. Public (1010737) | about a year ago | (#45247843)

No, even the FISA court issues signed warrants and court orders. It's just that the subjects of the searches are also issued a gag order, which prevents them from talking about it.

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.

Re:duty to assist law enforcement agents?? (2)

shentino (1139071) | about a year ago | (#45248069)

Even FISA itself admits it's pretty much rubber stamping everything.

Re:duty to assist law enforcement agents?? (3, Interesting)

Jane Q. Public (1010737) | about a year ago | (#45248401)

I meant a literal rubber stamp. Sometimes court clerks have been known to, on order from a judge, use a REAL rubber stamp of the judge's signature on paperwork.

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.

Re:duty to assist law enforcement agents?? (1)

Xicor (2738029) | about a year ago | (#45248293)

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.

Re:duty to assist law enforcement agents?? (1)

Jane Q. Public (1010737) | about a year ago | (#45248437)

"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 evidence the government has. And if it has none, the judge is compelled by law to find not guilty.

But that's still wrong, in my view. Secrecy simply does not belong in our court system.

Re:duty to assist law enforcement agents?? (1)

mcgrew (92797) | about a year ago | (#45248025)

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]

Re:duty to assist law enforcement agents?? (2)

Jane Q. Public (1010737) | about a year ago | (#45248467)

"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 resisting-arrest charges.

Re:duty to assist law enforcement agents?? (0)

Anonymous Coward | about a year ago | (#45248153)

I'm calling complete bullshit, the judges do NOT type up their own warrants. That's ridiculous.

No where I know of allows warrants over the phone, everywhere does require a judge to actually sign it. However, there is almost zero oversight here. I'm sure some judges somewhere actually take their job seriously, but most seem to simply sign whatever is stuck under their noses. There is no other explanation for the sheer number of warrants issued in this country.

Re:duty to assist law enforcement agents?? (1)

epyT-R (613989) | about a year ago | (#45248279)

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, they also prevent the defendant from having a trial because the charges are classified. It's bullshit.

Re:duty to assist law enforcement agents?? (5, Insightful)

icebike (68054) | about a year ago | (#45247743)

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.

Re:duty to assist law enforcement agents?? (1)

mcgrew (92797) | about a year ago | (#45248035)

Hammer, meet the nail's head. Where are the moderators? +5 insightful.

Blatantly wrong (4, Interesting)

Okian Warrior (537106) | about a year ago | (#45247887)

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?? (0)

Anonymous Coward | about a year ago | (#45247615)

Quite right. More, if you were a victim of a crime, I wouldn't assist those law enforcement types either. Lets call it doing the world a favour.

Hidden courts (1)

Anonymous Coward | about a year ago | (#45247467)

Isn't it hard to sue when you don't know the rulings in the secret courts? I suppose it's like attending a game in which you do not know the rules, and they also change without notice.

lavabit should have helped the first time (-1, Troll)

Anonymous Coward | about a year ago | (#45247507)

when the FBI wanted access to only a few accounts. instead they blew them off and brought this on to themselves

don't stand in the way of the FBI gathering evidence for an espionage investigation

Re:lavabit should have helped the first time (5, Insightful)

shentino (1139071) | about a year ago | (#45247515)

The argument is that lavabit was asked to sabotage it's prime selling point.

Re:lavabit should have helped the first time (1, Informative)

Shavano (2541114) | about a year ago | (#45247557)

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.

Re:lavabit should have helped the first time (0)

king neckbeard (1801738) | about a year ago | (#45247565)

No, they didn't. The spooks demanded Lavabit's prviate SSL key.

Re:lavabit should have helped the first time (1)

alen (225700) | about a year ago | (#45247649)

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 (4, Informative)

king neckbeard (1801738) | about a year ago | (#45247739)

There is no such thing as 'access to a few accounts' in their model. And the feds weren't involved in a legitamite operation anyway. They were trying to track down someone who had exposed their crimes.

Re:lavabit should have helped the first time (1)

cold fjord (826450) | about a year ago | (#45248241)

The FBI originally only wanted the metadata. They had apparently provided that information in the past, so why not this time? It's great that you have your own personal theory of law, but that isn't what's on the books, or how the courts see it. It was a legitimate investigation according to the law. You just happen to agree with that law being broken in this case.

You should keep in mind that not all of the fallout has settled from this yet, and you might very well come to regret that it ever occurred before its done. Fate can be perverse.

Re:lavabit should have helped the first time (1)

king neckbeard (1801738) | about a year ago | (#45248355)

Do you have a source on that? IIRC, they have agreed to install 'pen register' devices in the past. Those provide no useful information for users of their paid accounts because it is all encrypted. They even eventually provided the SSL key, albeit in a very spiteful manner.

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 evidence out so far, the level needed to justify everything they've done would have to be that they know of a serious threat to all life on Earth, and said threat could come from anywhere, likely involving leaders of other world governments. Anything short of that would mean that the NSA should be taken down.

Re:lavabit should have helped the first time (1)

sjames (1099) | about a year ago | (#45248015)

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 (1)

Anonymous Coward | about a year ago | (#45247691)

And if they had done it quietly, they would still be in business.

A business based on fraud. Some of us want to live an honest life. Do you?

Re:lavabit should have helped the first time (0)

Anonymous Coward | about a year ago | (#45248029)

Glad you have nothing to hide neither do I. But.... Have fun on "Your" slippery slope.

Re: lavabit should have helped the first time (0)

Anonymous Coward | about a year ago | (#45247755)

No, they did not have the encryption keys, that's why they were forced to hand out their SSL Keys.

Re:lavabit should have helped the first time (4, Interesting)

auric_dude (610172) | about a year ago | (#45247589)

Lavabit Appeal EFF Amicus Brief http://cryptome.org/2013/10/lavabit-eff-amicus-13-1024.pdf [cryptome.org] , Lavabit Appeal ACLU Amicus Brief http://cryptome.org/2013/10/lavabit-aclu-amicus-13-1024.pdf [cryptome.org] & Lavabit Appeal Empeopled Amicus Brief http://cryptome.org/2013/10/lavabit-empeopled-amicus-13-1024.pdf [cryptome.org] might offer some insight into the legal advice sought and deployed via http://cryptome.org/ [cryptome.org] .

Re:lavabit should have helped the first time (0)

Anonymous Coward | about a year ago | (#45247641)

what point?
i'm almost 40 and can remember lots of national security investigations going back the 80's. each one the feds intercepted the communications of the suspect to gather evidence. in some cases they did this for months or years

there is decades of legal precedence in the US that you help the government collect evidence for a criminal investigation no matter what your business model is

Re:lavabit should have helped the first time (1)

sI4shd0rk (3402769) | about a year ago | (#45247801)

there is decades of legal precedence in the US that you help the government collect evidence for a criminal investigation no matter what your business model is

And the government has also violated the constitution many, many times; that doesn't make it right.

Re:lavabit should have helped the first time (1)

Proudrooster (580120) | about a year ago | (#45248159)

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 going to stop this nonsense. It is time we had some grown up discussion about spying on everyone "just because we can" and decide what we as "a people" would like to agree to and then modify the constitution accordingly.

I suspect that secret courts, secret judges, secret orders, and secret laws are not the America the most of us want, but hey, I could be wrong. The only thing we are missing is the secret police asking you for your papers please.

Re:lavabit should have helped the first time (0)

cold fjord (826450) | about a year ago | (#45248295)

Joe McCarthy was a legislator with quite limited power, and he was done with long, long ago.

The real problem isn't that Snowden "embarrassed" the US president and government agencies, but that he stole enormous amounts of classified information from the US and its allies and passed it on to third parties. That is simple enough to understand as the basis for a criminal charge. Lavabit obstructed an investigation into a crime, and is paying the price. You approve of the crime. Maybe you think that there is no problem with that, but the government of the UK thinks it has suffered enormous damage to its security. I think you've got a pretty big credibility hurdle if you want to claim it was nothing.

The US doesn't have secret police because it isn't a dictatorship despite your secret this and secret that. It isn't a small point. And you should be clear that courts handle confidential matters all the time. That isn't new either.

Re:lavabit should have helped the first time (2)

king neckbeard (1801738) | about a year ago | (#45248419)

The government of the UK CLAIMS is has suffered enormous damage to its security. That doesn't mean they actually think that to be the case. There's this behavior known as 'lying', and government have done this in the past, especially when dirty laundry has been exposed.

Re:lavabit should have helped the first time (0)

Anonymous Coward | about a year ago | (#45248591)

Two facts about Joe McCarthy which are not often mentioned:

1) He was a Democrat.
2) He was right.

Re:lavabit should have helped the first time (1)

10101001 10101001 (732688) | about a year ago | (#45248083)

You know, I think it's actually much worse than that. Lavabit was inherently being asked to engage in fraud. That is, as you state, it's prime selling point was precisely that it wouldn't in some hidden act be complicit in complying with whatever orders from whatever government demanding to undermine its secure e-mail service*. Look at how Google, Microsoft, etc are putting up a good song and dance about the "outrage" of what they complied with. Yet one could believe that corporations of their size would inherently be undermined, be it through official sanction from the CEO or through mole(s). But, a small-time company wouldn't have that sort of implicit property.

In any case, the part that's really bad isn't per se that Lavabit was asked to engage in fraud but that inherently that means the judiciary and executive branches were both co-conspirators directing this fraud. To me, that's a much worse offense than one company/person lying for profit.

*I guess one could argue that inherent to the fact that China, Russia, America, etc all have very conflicting and rival views and how each are quite willing to pretend they have global jurisdiction when it suits them--America is just more public about it--, that it's almost a given that one government would invariably be demanding that such a service hand over keys at some point and hence there's no way that such a service could ever be secure in the sense implied. That would either stand to undermine the implied level of security--which undermines Lavabit's case--or implies a certain level of intentional or incidental misleading/fraudulent claims of security. Of course, that Lavabit would shut its doors instead of giving away keys actually stopped the situation from carrying through to the end as actual fraud, which shows the only one with any character in this situation seems to be Lavabit.

The really galling part to me? That Lavabit can't seemingly do what most every company does in a similar circumstance: take a slap on the wrist, shut its doors, then open again with virtually the same operation under a new name. It's okay to play shell games with the IRS but not the NSA, it seems.

Re:lavabit should have helped the first time (0)

cold fjord (826450) | about a year ago | (#45248209)

The argument is that lavabit was asked to sabotage it's prime selling point.

According to the reports, the first time the FBI went to Lavabit they only wanted metadata for one account, something Lavabit had apparently provided in the past. They didn't comply with that request, which led to several rounds in court and ultimately a much bigger demand given what could be described as Lavabits previous repeated willful noncompliance and obstruction. You can either look at the situation as Lavabit sabotaging themselves, or that they were making promises that they couldn't legally keep and remain in business. You don't get to launder money just because you promise that to your customers. You don't get to defy court orders if you want a nation of laws.

Re:lavabit should have helped the first time (1)

king neckbeard (1801738) | about a year ago | (#45248483)

What they had done in the past was agree to install a pen register or tap and trace device. With the way Lavabit works, that's completely useless.

Re:lavabit should have helped the first time (2, Insightful)

Anonymous Coward | about a year ago | (#45247531)

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?

Re:lavabit should have helped the first time (1)

Dunbal (464142) | about a year ago | (#45247985)

Why is the government focusing on revenge?

Sending a message?

Re:lavabit should have helped the first time (0)

Anonymous Coward | about a year ago | (#45248055)

A government cheerleader licking the government's boots? Why, who would have thought!?

Some of us are only licking the government's boots because they are standing on our faces.

Why is the government focusing on revenge?

Because no one can stop them. If you try you are subjected to the same tactics as every other suspect who is guilty until proven guiltier.

Re:lavabit should have helped the first time (0)

Anonymous Coward | about a year ago | (#45248563)

Because no one can stop them. If you try you are subjected to the same tactics as every other suspect who is guilty until proven guiltier.

This brings to mind an adage about those who say it can't be done being shown up by those doing it, anyway. Time will tell. In the meantime, feel free to hold your breath. That sure would be better than licking boots, regardless of where they may be.

Re:lavabit should have helped the first time (0)

Anonymous Coward | about a year ago | (#45247541)

I wonder how garbage like this gets modded up. No, collecting everyone's information is not okay. No, requiring Lavabit to surrender information that would jeopardize the security of all its users because they opposed you the first time around is not okay either.

Re:lavabit should have helped the first time (3, Insightful)

king neckbeard (1801738) | about a year ago | (#45247547)

Except for the fact that they couldn't do that by virtue of the site's design. As another article explained on /. explained, that design choice was good security practice because the government exploiting you is not any different technologically than any other insider attack. The problem is that the NSA got exposed, and they got pissed. The answer was to nuke the NSA from orbit. It's the only way to be sure.

Re:lavabit should have helped the first time (1)

VortexCortex (1117377) | about a year ago | (#45248077)

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 (5, Informative)

Anonymous Coward | about a year ago | (#45247951)

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.

Third amendment challenge? (0)

Anonymous Coward | about a year ago | (#45247535)

In all seriousness, using a broad reading of the third amendment, might there not be a challenge there?

Re:Third amendment challenge? (1)

penix1 (722987) | about a year ago | (#45247681)

What does the 3rd Amendment have to do with it???

Amendment 3:

No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Re:Third amendment challenge? (1)

king neckbeard (1801738) | about a year ago | (#45247703)

'Soliders' are staying in their 'home' without their consent. As broadly as they interpret 'interstate commerce', I can see it.

Re:Third amendment challenge? (2)

penix1 (722987) | about a year ago | (#45247763)

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?

Re:Third amendment challenge? (1)

king neckbeard (1801738) | about a year ago | (#45247799)

It is grasping at straws, but FBI agents often do carry guns, this was a privately owned business, and like I said before, SCOTUS has ruled very broadly on their interpretations of the enumerated powers, so it would only be fair to rule as broadly on the Bill of Rights. It probably won't make it that far, unforunately. There are better grounds that have a better chance, but we've given up on liberty if you can throw the words 'national security' in.

Re:Third amendment challenge? (2)

penix1 (722987) | about a year ago | (#45247947)

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.

Re:Third amendment challenge? (1)

king neckbeard (1801738) | about a year ago | (#45248043)

I'm not sure that it would meet that. It is an odd approach, but the third amendment is largely ignored, so there isn't a great deal of precedent on it.

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.

Re:Third amendment challenge? (1)

sjames (1099) | about a year ago | (#45248039)

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.

Re:Third amendment challenge? (1)

king neckbeard (1801738) | about a year ago | (#45248253)

You are making an inaccurate statement. The single pot plant is under federal jurisdiction because it might affect the PRICE of pot in other states, thus making it 'interstate commerce.' It's actually a little worse IMO than the situation you describe. But that was actually one of the cases I was thinking of in regards to SCOTUS ruling with very broad interpretations.

Why do they have users' keys anyway? (0)

Shavano (2541114) | about a year ago | (#45247537)

If you want your data secure, you do not give anyone your keys, whether that person be a third party or the government. The government can make you give them your keys, but Lavabit can't. Why do they have anybody's keys?

Re:Why do they have users' keys anyway? (2)

CRCulver (715279) | about a year ago | (#45247567)

Even if you encrypt your messages yourself, you must still push those messages through a service to its recipient. So, you are inevitably at risk of traffic analysis, and in Snowden's case the NSA was just as interested in who he was communicating with as what exactly was being said. So, laugh at users of Lavabit all you want, but it's not like plain e-mail with both sides PGPing their messages is any better.

Re:Why do they have users' keys anyway? (0)

Anonymous Coward | about a year ago | (#45247675)

Partly people lose keys, and need to re-authenticate with the new keys. Lavabit also has their *own* keys, to encrypt and authenticate communications to their own website and services. Grabbing Lavabit's private SSL keys (as the spooks wanted) would mean they could do man-in-the-middle monitoring of SSL traffic to Lavabit, including customers setting up their own accounts, personall authentication passwords, etc.

This is the big f'ing hole iwth Microsoft's "Palladium" project, which got renamed as "Trusted Computing" and is now showing up in hardware encryption modules for booting kernels on modern motherboards. Microsoft owns the master keys, *and* keeps the private keys in escrow, *AND* has the tools to revoke keys. Guess who's got a private, without any court's knowledge, lik to *that* little vault of private keys? Microsoft doesn't even *pretend* to protect those keys from every neighborhood sherriff with a note from his mama sitting out in the car, signed with a cray.

where does it say have to give them my keys? (2)

rewindustry (3401253) | about a year ago | (#45247685)

what happens if i don't know, if i forget, for instance, or my key store is set to autodestruct? what happens in a distributed system like (toad's) freenet, where the keys are unknown? and can anyone explain how this might apply in canada? also - off topic - for pity sake, why will slashdot not recognise simple linefeeds?

Re:where does it say have to give them my keys? (3, Informative)

mcgrew (92797) | about a year ago | (#45248149)

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 &lt; to display).

<b> Bold</b>
<i> italic</i>
<a href="http://slashdot.org"> Link [slashdot.org] </a>

Line feeds used, no <P> or <br>

Re:Why do they have users' keys anyway? (1)

the eric conspiracy (20178) | about a year ago | (#45247905)

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.

Ohhh are the little socialists tummies upset? (-1)

Anonymous Coward | about a year ago | (#45247783)

It's the most frightening time of year--that heart pounding moment when you spot your open enrollment information lurking in your inbox, rip it open with trembling hands, and scream in horror as your annual premium increase leaps from the envelop and mercilessly feasts upon the insides of your wallet, gnashing and shredding in orgiastic ecstasy until there's nothing left but a handful of pennies and a contemptuously belched up KFC coupon.

Expired, of course.

This terrifying scene will be repeated all across America in the next few weeks.

My own horror show arrived in the mail today. I'll spare you the gory details. Here's the short version: A 25% increase in premiums for the same health coverage I carried last year. For someone on a family plan, that translates into a $1,200 yearly increase.

So congratulations. If you make somewhere around $50,000 a year, then more than your entire after tax annual raise just went to pay for Obamacare. Doesn't that feel FANTASTIC? You're bringing home less this year than you did last year.

And you're one of the lucky ones. See, you have a job. And you got a raise. You're one of life's lottery winners. A one percenter.

Question (1)

brit74 (831798) | about a year ago | (#45247915)

I'm confused about what the article is saying. Here's an excerpt:

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 be considered to be "unreasonable".)

I'm a little confused because if Lavabit refused to give-up encryption keys of specific users in response to a warrant (under the argument that compromising their service in response to a warrant would render the "secure" part of their email service useless), then I'd side with the government.

But if the government wanted the encryption details which would give them access to the emails of all their users, then I'd side with Lavabit.

Or maybe Lavabit had an encryption system that was the same for every user - meaning giving up the encryption key for any user would compromise all users, then I'd think that Lavabit did a crappy job of securing the emails and I don't really feel that bad for them.

Lavabit closed its service in August after the US authorities demanded he hand over the encryption keys for its entire service – a move Levison said would have compromised the personal details of his 40,000 clients.

Are they saying that the personal details (e.g. the name of the user, etc) but not the emails themselves were at risk if someone had the encryption key? So it's the encryption key for the metadata about their users? (Which wouldn't surprise me if they had one encryption scheme for their database of users, though I'd wonder how the government got the encrypted database of Lavabit's users.)

Re:Question (2)

TheNumberSix (580081) | about a year ago | (#45248019)

The entire story is given by this in-depth interview with Ladar himself. http://twit.tv/show/triangulation/125 [twit.tv] I highly recommend this if you are interested. He also explains that he was personally cited in the warrants, so even if Lavabit gos away, Ladar himself is still liable to give up the info.

Excellent interview with Ladar Levison on TWIT.tv (0)

Anonymous Coward | about a year ago | (#45248177)

An excellent interview with Ladar Levison. Ladar walks through the events he went through. http://twit.tv/show/triangulation/125 [twit.tv]

Wait a second... (2)

FuzzNugget (2840687) | about a year ago | (#45248611)

As I recall, each paying Lavabit customers' email storage was encrypted using a key of the respective customers' choosing. Lavabit did not have these keys and could not, themselves, read customers' email, even if they wanted to.

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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