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Lavabit appeal confirms original ruling [pdf]

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Re: Lavabit appeal confirms original ruling [pdf]

#31

Post by jethro_tell »

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…

It is, but at this point he didn't have a lawyer (via a quote from his lawyer in the most recent court proceeding), so instead of going to court with the DOJ, a Lawyer, and a Judge, and explaining the technical issues, he just hoped they would go away or something. When you get a note of this nature from the DOJ that you aren't interested in complying with, you should probably carve out some time on the same day to call your lawyer, or the ACLU or EFF.

Re: Lavabit appeal confirms original ruling [pdf]

#33

Post by marshray »

I don't see why the court couldn't 'refashion' Levison's statement ...

"[I object] to turning over the SSL keys because that would compromise all of the secure communications in and out of my network, including my own administrative traffic."

... into "anything remotely close to a statutory-text-based challenge to the district court’s fundamental authority under the Pen/Trap Statute"

As a lay person, it sounds like the court wasn't trying very hard.

Re: Lavabit appeal confirms original ruling [pdf]

#34

Post by 300bps »

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…

The DOJ spent eleven days trying to meet with Levison

You emphasized eleven days as if it is some astronomical figure. In normal court proceedings, the simplest act like scheduling a deposition for questioning a witness takes months.

In the real world, people just aren't sitting around doing nothing waiting for a subpoena from the FBI to come in. Sometimes they're in the middle of a big push for a project, sometimes they're shoring up security for the latest 0-day exploit, sometimes they're in Tahiti sipping drinks on a beach for two weeks without access to email or a phone.

Sure, time sensitive criminal cases would be great if it went faster but eleven days is not out of line by any stretch.

Re: Lavabit appeal confirms original ruling [pdf]

#35

Post by elliotz »

otterley wrote: post #32

Levison should have hired a competent and experienced attorney the day the FBI contacted him. The errors and failures cited in the appellate opinion are ones that nearly any attorney that passed a Bar Exam wouldn't have made.

With emphasis on experienced - Levison was represented for a bit by a business attorney. He may have passed the bar, but he was completely inexperienced in federal criminal cases.

Re: Lavabit appeal confirms original ruling [pdf]

#36

Post by rdl »

gamblor956 wrote: post #26
rdl wrote: post #24

Earlier quoted context omitted.

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.…

I was referring to https://en.wikipedia.org/wiki/Sega_v._Accolade

Re: Lavabit appeal confirms original ruling [pdf]

#37

Post by bradleyjg »

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…

I agree that Smith v. Maryland, 442 U.S. 735 (1979) and its progeny are not great, and it's possible, though unlikely, that the Supreme Court will eventually revisit the issue. But Levison's actions in no way helped make that any more likely. On the contrary he completely failed to preserve the issue. His mistakes were in large part due to the repeated efforts to act as his own attorney. I'm sympathetic regarding the high cost of legal representation but he could have at least tried to reach out to one of the fairly well funded public groups that do work in this area early on.

Re: Lavabit appeal confirms original ruling [pdf]

#38

Post by jethro_tell »

elliotz wrote: post #35
otterley wrote: post #32

Levison should have hired a competent and experienced attorney the day the FBI contacted him. The errors and failures cited in the appellate opinion are ones that nearly any attorney that passed a Bar Exam wouldn't have made.

With emphasis on experienced - Levison was represented for a bit by a business attorney. He may have passed the bar, but he was completely inexperienced in federal criminal cases.

He was, but I think he only had representation after day 10 or something. The first few days you was way out of his element. I think his business attorney was experienced enough to get someone else on the case as well since it was a bit out of his domain.

Re: Lavabit appeal confirms original ruling [pdf]

#39

Post by marshray »

xcyu wrote: post #30

"Levison provided the FBI with an 11-page printout containing largely illegible characters in 4-point type, which he represented to be Lavabit’s encryption keys" This made my day.

We've all chuckled at the "man pays divorce settlement with truckload of pennies" stories before.

But this is the story of a guy without good legal representation pissing off the judge and setting bad precedent that could affect all of us.

Re: Lavabit appeal confirms original ruling [pdf]

#40

Post by joshuak »

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 am not a lawyer, but having read through the decision it still seems to me that the fact someone is an asshole is strictly immaterial to the issue of weather or not it is reasonable/constitutionally allowable to issue a warrant of any kind that would:

1) Compromise the presumed privacy of any parties in addition to the target, much less every one of a businesse's clientele. (If you have a search warrant for a apartment, do you get to search all the apartments in the building? No, unreasonable search and seizure on the face of it.)

2) Cause material damages as to completely destroy the core business of an unrelated and presumed innocent business owner. Albeit asshole.

The government argued successfully that the warrant was “very narrow, specific”, but while that may be true in intent it is not true in effect. If in order to tap one suspected criminal it is necessary to undermine the right to privacy of one or more innocent bystanders (much less many) law enforcement and the court's hands must necessarily be tied.

That a citizen would be resistant to this seems reasonable. So what is left should only be a question as to how much being an asshole to the FBI constitutes contempt of court.

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