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Lavabit appeal confirms original ruling [pdf]

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Re: Lavabit appeal confirms original ruling [pdf]

#41

Post by saraid216 »

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…

Really, this is a case for legislation. The judiciary is responsible for comparing fact and action against agreed and applicable law. The "proper consideration of major issues" is why we have legislation: we're supposed to do this consideration before laws are passed. That's why it takes so much effort to pass a law; it provides time for such consideration. That's where the allowance for filibusters came from: if someone has another angle to bring to bear on a subject, you will goddamn consider it even if it takes a hundred hours.

The judicial system is thus, in a sense, the very exception-handling system you want. It's catching exceptions called "Oh shit, we didn't think of this case and we need to decide consequences now".

Re: Lavabit appeal confirms original ruling [pdf]

#42

Post by tptacek »

joshuak wrote: post #40
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 apart…

I'm not a lawyer either, but if you reread my comment, you'll see that my issue here is that Levison had an opportunity to work with the DOJ without compromising all of his users: the production of his TLS keys wasn't litigated until after he had stonewalled DOJ over narrower requests.

Re: Lavabit appeal confirms original ruling [pdf]

#44

Post by gamblor956 »

rdl wrote: post #36
gamblor956 wrote: post #26

Earlier quoted context omitted.

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

I'm not sure how that case is relevant to your point. In that case, Sega used a TMSS file as a hardware check to make sure games were properly licensed. Acclaim copied this file and included it in their games after reverse-engineering some demo games. This was eventually found to be fair-use since it was required to run their games but there was no technical reasons for the use of the TMSS file.

That's different from the point you were trying to make. The provision of email addresses and phone numbers are inherently necessary for an email provider or telephone service provider to provide those services. They aren't just incidental data--they're a fundamental part of the service transactions at issue.

Re: Lavabit appeal confirms original ruling [pdf]

#45

Post by ericcumbee »

saraid216 wrote: post #41
ISL wrote: post #22

Earlier quoted context omitted.

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…

Really, this is a case for legislation. The judiciary is responsible for comparing fact and action against agreed and applicable law. The "proper consideration of major issues" is why we have legislation: we're supposed to do this consideration before laws are passed. That's why it takes so much effort to pass a law; it provides time for such consideration. That's where the allowance for filibusters came from: if som…

Which goes back to Chief Justice Roberts statement on the ObamaCare ruling. “It is not our job to protect the people from the consequences of their political choices,”

Re: Lavabit appeal confirms original ruling [pdf]

#46

Post by kijin »

Sigh.

Why does every landmark case involving online privacy have to involve incompetent, unsavory, or sometimes even downright despicable people (e.g. child pornographers) on the defense side?

In order to force the legal system to take a serious look at the core issues (whether the Feds can compel a company to produce its SSL private keys, whether they can compel a man to produce the password to his TrueCrypt drive, etc.) instead of getting distracted by all sorts of procedural bullshit, the case needs to have a competent defendant and even more competent counsel who make no serious mistakes throughout the course of the trial. That's the only way we're going to get a clear, decisive precedent, because otherwise the procedural blunders will dominate the legal result.

Levison's failure to contact the EFF or ACLU the moment he received the first pen/trap order has led us all to waste a lot of time and resources litigating mostly peripheral issues, and probably caused a lot more hardship for Levison himself than he ever needed to get into. Meanwhile, we still don't have a clear idea of what the U.S. legal system thinks about forcing the disclosure of SSL private keys.

Of course, hindsight is 20/20, so maybe there are adequate explanations for why he thought it was a good idea to wave a middle finger in the face of the DOJ.

But in the grand scheme of things in the battle for internet freedom, I think we just missed a golden opportunity to get the courts to tackle some serious constitutional issues. Just like in all those other contempt cases where TrueCrypt drive in question obvious contained CP, or all those other surveillance cases where the defendant was a heavy uploader. Assholes, pirates, and child pornographers have rights, of course, but they usually don't make effective crusaders.

Re: Lavabit appeal confirms original ruling [pdf]

#47

Post by peterwoo »

marshray wrote: post #33

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 t…

It's clear to me, even as a lay person, that Levinson's statement does not refer to any statutory text. Or any legal procedure, etc. On what grounds was he objecting?

"A party does not go far enough by raising a non-specific objection or claim"

Re: Lavabit appeal confirms original ruling [pdf]

#48

Post by deciplex »

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 guess you're just taking it as a given that resisting the DOJ's persecution of Snowden was an error. I'm not really surprised, given your history of cheerleading for the NSA, but anyone who doesn't agree with that is going to find the rest of your reasoning a bit wanting.

Re: Lavabit appeal confirms original ruling [pdf]

#49

Post by joshuak »

tptacek wrote: post #42
joshuak wrote: post #40

Earlier quoted context omitted.

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 apart…

I'm not a lawyer either, but if you reread my comment, you'll see that my issue here is that Levison had an opportunity to work with the DOJ without compromising all of his users: the production of his TLS keys wasn't litigated until after he had stonewalled DOJ over narrower requests.

That is difficult to assert since as soon as the DOJ finally did install the tap and got encrypted traffic (as he had told them they would from the beginning) they immediately insisted on the keys.

I can't imagine they would not have demanded the keys if only he had been more cooperative from the beginning. And it is not unreasonable to believe he was fearful of that outcome from the beginning. In fact as part of the tap order he objected to he was required to "assist" which even the court noted was an ambiguous requirement (although avoided a decision on that issue).

Re: Lavabit appeal confirms original ruling [pdf]

#50

Post by tptacek »

joshuak wrote: post #49
tptacek wrote: post #42

Earlier quoted context omitted.

I'm not a lawyer either, but if you reread my comment, you'll see that my issue here is that Levison had an opportunity to work with the DOJ without compromising all of his users: the production of his TLS keys wasn't litigated until after he had stonewalled DOJ over narrower requests.

That is difficult to assert since as soon as the DOJ finally did install the tap and got encrypted traffic (as he had told them they would from the beginning) they immediately insisted on the keys. I can't imagine they would not have demanded the keys if only he had been more cooperative from the beginning. And it is not unreasonable to believe he was fearful of that outcome from the beginning. In fact as part of the…

Look back a page, and check out my original comment. Levison offered a solution where he'd provide the decrypted information the DOJ wanted, but it was rejected, because:

* By the time he suggested it, he had demonstrated hostility to DOJ's cause

* He refused to provide timely updates, instead dictating that information would be provided only at the conclusion of the monitoring window

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