Lavabit appeal confirms original ruling [pdf]

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 Snowden had enabled the "storage encryption" feature of Lavabit.

Here it's worth knowing that Levison had previously complied with similarly narrow requests.

* Levison confirmed to the DOJ that he had the ability to circumvent the storage encryption.

* The DOJ responded to that concession by doing exactly what anyone would have expected them to do: they escalated their demand to include the decrypted Snowden data.

* The DOJ spent eleven days trying to meet with Levison, who stonewalled them; Levison "ignored the FBI’s repeated requests to confer".

* Only upon being threatened with a contempt citation did Levison actually enter a productive discussion with the DOJ.

* Four days after being threatened with contempt, Levison presented the DOJ with a proposal to charge the DOJ $2000 to design and implement his own pen/trap system which would provide data to the DOJ only at the conclusion of the order's time window, with timely updates being provided only at Levison's discretion and only with an additional charge attached.

* Only after this sequence of events does DOJ demand the TLS keys that would have compromised all Lavabit users activities.

Levison's attorneys and the DOJ litigated the question of whether the pen/trap order required him to cough up his TLS keys. But that only happened after Levison did his best to deter the DOJ from collecting information about Snowden. As evidence for this: the DOJ eventually did install a pen/trap device of some sort, without the TLS keys, and attempted to use it to collect evidence. Had Levison complied with the DOJ productively from the beginning, he probably could have worked with them to produce the information they required without compromising the rest of his users.

I already had a problem with Lavabit as an inept and dangerous privacy solution (you can obviously see that it was; Levison was trivially able to subvert the privacy of all of his users, and was eventually forced to do so).

But almost as bad as that is his handling of the legal situation here. Read the language of the decision carefully and you'll see that had Levison simply began this process with his proposal, minus the time lag problem, but perhaps even including the price tag, he might have had that solution accepted! Instead, he seems to have seized an opportunity to poke a giant bear with a stick. The bear then ate him and his users.

Later: Also, bad facts make bad law. Great to see that we now have more case law establishing that pen/trap orders demand TLS keys.

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 incredibly reckless argument post-Snowden.

Would Google just hand over the key to all of their Gmail users? Let's imagine they weren't using PFS - or let's imagine they were asking Microsoft for the Outlook key, instead.

Google wouldn't hand over the key to all of their Gmail users — they would offer a better option, which Levison did not.

The problem of a company providing a privacy service being a SPOF necessitates a more distributed approach that can "route around" attempts to shut it down. Any current or future entrant in privacy app space needs to also consider that one of several lessons to avoid the same fate as Lavabit.

For now, even with GPG are there any good/cheap email services that just don't log anything, don't append IPs or correct time headers and are outside US jurisdiction? (Friend's server in Thailand doesn't count... More than one box plz)

Presumably Twitter's lawyers avoid brinksmanship, knowing that they'll inevitably lose and, in the process, lose credibility with the court.