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Lavabit appeal confirms original ruling [pdf]

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Re: Lavabit appeal confirms original ruling [pdf]

#21

Post by [deleted] »

tptacek wrote: post #10
higherpurpose wrote: post #9

Earlier quoted context omitted.

Wasn't it his right to fight a court order (don't think it was warrant) like that? I think Twitter has fought court orders in the past, while refusing to give the data in the mean time. I think Levison's mistake was that he did it all by himself, instead of hiring a lawyer and following the proper procedure for doing that. The government escalated with a broader request, which I guess was also their right to try (eve…

He didn't simply fight the order; he deliberately antagonized the DOJ. Presumably Twitter's lawyers avoid brinksmanship, knowing that they'll inevitably lose and, in the process, lose credibility with the court.

[deleted]

Re: Lavabit appeal confirms original ruling [pdf]

#22

Post by ISL »

pdabbadabba wrote: post #16
ISL wrote: post #11

Earlier quoted context omitted.

Is an unconstitutional act acceptable if a defendant's defense is sub-par?

No. The problem, though, is that it is difficult for a court of appeals to determine whether an unconstitutional act occurred when a party does not raise the concern before the lower court. A court of appeals does not collect evidence and is constrained by the factual record developed below. I don't think we would be better off if courts of appeals resolved a constitutional issues without the issue's having thoroughl…

Hm. Is there provision for, "Gee, it sure looks like important investigation may not have occurred in this case, perhaps it should be revisited"?

  catch( DefenseDidNotDoSomethingImportantException e ){
     Case.Retrial();
  }
As a defendant (or coder), you don't want to have to rely on exception-handling to save you from error, but as a citizen, I'd like to prevent technicalities from blinding our judicial system to proper consideration of major issues. Technicalities are often there for a reason (as this one is), but that shouldn't stop us from getting at the heart of an issue.

Re: Lavabit appeal confirms original ruling [pdf]

#23

Post by tptacek »

[deleted] wrote: post #21
tptacek wrote: post #10

Earlier quoted context omitted.

He didn't simply fight the order; he deliberately antagonized the DOJ. Presumably Twitter's lawyers avoid brinksmanship, knowing that they'll inevitably lose and, in the process, lose credibility with the court.

[deleted]

No, your assertion doesn't follow logically. For instance, during the course of a trial, an antagonistic witness can be treated as hostile, giving examining attorneys more leeway in what questions they get to ask. Or, a dishonest witness can be treated as if all their statements were untrustworthy in jury instructions.

Being punished for hurting a prosecutor's feelings is not the same as being penalized for obstructing the proceedings of a court case.

This decision spends tens of pages applying the law to the facts of the case, and deciding against Levison.

Re: Lavabit appeal confirms original ruling [pdf]

#24

Post by rdl »

tptacek wrote: post #2

The more I read about the case, the less happy I am about having donated to Levison. Pages 8-12 of this decision convey a narrative about Levison's handling of the FBI requests. In particular, they detail an escalation that Levison himself provoked: * The DOJ reached out demanding metadata regarding (presumably, and let's just stipulate) Snowden's use of Lavabit. * Levison rejected the request, on the auspices that S…

I disagree with the entire 'very little cause required to compel disclosure of metadata'; essentially, the third-party doctrine should only apply if users are consciously giving their data to a third party for the purpose of redistribution, and not purely incidentally to a service.

If they can argue something like a copyright banner in a ROM is "a mere instrumentality", there's no reason the defense side shouldn't be able to argue giving calling information to a cell provider, or mail headers to a mail server, aren't essentially the same instrumentalities.

(I've talked to lawyers who agree, but they all also agree this ship has sailed for many decades.)

That said, yes, he's both technically and legally incompetent. It's sad, and has made bad law for everyone else.

Re: Lavabit appeal confirms original ruling [pdf]

#25

Post by jamesaguilar »

ISL wrote: post #22
pdabbadabba wrote: post #16

Earlier quoted context omitted.

No. The problem, though, is that it is difficult for a court of appeals to determine whether an unconstitutional act occurred when a party does not raise the concern before the lower court. A court of appeals does not collect evidence and is constrained by the factual record developed below. I don't think we would be better off if courts of appeals resolved a constitutional issues without the issue's having thoroughl…

Hm. Is there provision for, "Gee, it sure looks like important investigation may not have occurred in this case, perhaps it should be revisited"? catch( DefenseDidNotDoSomethingImportantException e ){ Case.Retrial(); } As a defendant (or coder), you don't want to have to rely on exception-handling to save you from error, but as a citizen, I'd like to prevent technicalities from blinding our judicial system to proper…

Problem is that you can DOS the system this way. You do not want to incent the defense to make weak arguments so that they can try again with stronger arguments in the case of a mistrial.

Re: Lavabit appeal confirms original ruling [pdf]

#26

Post by gamblor956 »

rdl wrote: post #24
tptacek wrote: post #2

The more I read about the case, the less happy I am about having donated to Levison. Pages 8-12 of this decision convey a narrative about Levison's handling of the FBI requests. In particular, they detail an escalation that Levison himself provoked: * The DOJ reached out demanding metadata regarding (presumably, and let's just stipulate) Snowden's use of Lavabit. * Levison rejected the request, on the auspices that S…

I disagree with the entire 'very little cause required to compel disclosure of metadata'; essentially, the third-party doctrine should only apply if users are consciously giving their data to a third party for the purpose of redistribution, and not purely incidentally to a service. If they can argue something like a copyright banner in a ROM is "a mere instrumentality", there's no reason the defense side shouldn't be…

Not even remotely similar. A copyright banner isn't even a mere instrumentality because copyright law already protects the ROM; the banner is redundant. (see http://www.copyright.gov/circs/circ03.pdf. Notice was required by the 1976 Copyright act but after the US adopted the Berne Convention notice became optional.)

On the other hand, mail headers and other such meta are frequently necessary to provide the service. The very act of using email requires giving one or more headers to one or more third-party email providers; the very act of making a phone call requires giving phone number information to one or more phone service providers.

Re: Lavabit appeal confirms original ruling [pdf]

#27

Post by pdabbadabba »

ISL wrote: post #22
pdabbadabba wrote: post #16

Earlier quoted context omitted.

No. The problem, though, is that it is difficult for a court of appeals to determine whether an unconstitutional act occurred when a party does not raise the concern before the lower court. A court of appeals does not collect evidence and is constrained by the factual record developed below. I don't think we would be better off if courts of appeals resolved a constitutional issues without the issue's having thoroughl…

Hm. Is there provision for, "Gee, it sure looks like important investigation may not have occurred in this case, perhaps it should be revisited"? catch( DefenseDidNotDoSomethingImportantException e ){ Case.Retrial(); } As a defendant (or coder), you don't want to have to rely on exception-handling to save you from error, but as a citizen, I'd like to prevent technicalities from blinding our judicial system to proper…

That can sometimes happen. If it is very obvious that a legal mistake was made, it is possible for a court of appeals to remand the case for further investigation. The problem in this case was not only that issues were not raised, but that Lavabit actually conceded that the government was legally entitled to the information it requested.

The opinion itself actually gets into all of this in considerable detail. I highly recommend reading pages 20-40 -- especially pages 22-23 -- if you find these issues interesting. The opinion also points out that there is a certain value in opinions' being final. If the court of appeals will just overlook the fact that parties have not raised all their arguments before the lower court, what incentive will litigants have in the future to do so? District courts are real courts! A litigant should not feel free to treat the district court proceeding lightly (as Lavabit seems to have done) in the hopes that it can prevail before the "real" court of appeals. The opinion also points out that the identification of issues of major public concern is probably not something that the court can be trusted to do objectively.

Re: Lavabit appeal confirms original ruling [pdf]

#28

Post by pdabbadabba »

higherpurpose wrote: post #4
tptacek wrote: post #2

The more I read about the case, the less happy I am about having donated to Levison. Pages 8-12 of this decision convey a narrative about Levison's handling of the FBI requests. In particular, they detail an escalation that Levison himself provoked: * The DOJ reached out demanding metadata regarding (presumably, and let's just stipulate) Snowden's use of Lavabit. * Levison rejected the request, on the auspices that S…

I agree that legally, Levison probably made a mistake by stonewalling DoJ. However, I worry about what losing this case means in the grand scheme of things. DoJ's argument was that they should be able to get the key to decrypt all e-mails for all of Lavabit's users, and the Court says that's fine because the government "wouldn't" use the key for anything other than the "target" - which seems like a ridiculous and inc…

It means almost literally nothing precedent-wise. The court affirmed the district court because Levinson either failed to raise his arguments before the district court and, in fact, conceded "that the [G]overnment [was] entitled to the [requested] information." It does not reach the substantive propriety of the warrant and order and cannot properly be cited for any such proposition.

Re: Lavabit appeal confirms original ruling [pdf]

#29

Post by anigbrowl »

higherpurpose wrote: post #9
mpyne wrote: post #7

Earlier quoted context omitted.

> Would Google just hand over the key to all of their Gmail users? No, Google would comply with the narrow, specific warrant the first time. Again, it bears repeating that the only reason DoJ asked for the master key in the first place is because Levison refused to comply with the narrow requests. If Levison wouldn't do it, then the government would figure it out on their own, but the only reason this situation even…

Wasn't it his right to fight a court order (don't think it was warrant) like that? I think Twitter has fought court orders in the past, while refusing to give the data in the mean time. I think Levison's mistake was that he did it all by himself, instead of hiring a lawyer and following the proper procedure for doing that. The government escalated with a broader request, which I guess was also their right to try (eve…

Wasn't it his right to fight a court order (don't think it was warrant) like that?

It's his right to fight the government request, or to appeal the court order to a higher court. But it's not his right to evade compliance. Yes the court is part of the government but it's not the executive part - courts can and do reject the arguments of the government (qua legal entity) all the time.

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