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Secrets, lies and Snowden's email: why I was forced to shut down Lavabit
May 20, 2014 5:40 AM   Subscribe

Ladar Levison
My legal saga started last summer with a knock at the door, behind which stood two federal agents ready to to serve me with a court order requiring the installation of surveillance equipment on my company's network.. (Previous)
posted by adamvasco (108 comments total) 37 users marked this as a favorite

 
Incredibly underhanded. I felt like if I was in his shoes, I would just be screaming at everyone. I can't imagine the frustration.
posted by namewithhe1d at 5:50 AM on May 20 [2 favorites]


So, let's see: a case held in a secret court where the defendant isn't allowed adequate time to find counsel, defendant found in contempt without any chance to object, contempt charge upheld on appeal because there was no objection, Supreme Court says "no thanks" to hearing the case because it was all decided on procedural grounds....

It sounds like in general the surveillance state has found one hell of a loophole allowing them to do whatever they want without meaningful judicial oversight. But how long will the Supreme Court be okay with being cut out of the balance of power?

Actually, don't answer that: I'm sure that Scalia and Thomas at least would want to decline to hear the case unless they felt certain how the court would vote, allowing Scalia to pen a majority decision stating that the government did nothing wrong.
posted by johnofjack at 5:57 AM on May 20 [21 favorites]


I can't imagine the frustration.
Fear is a huge factor I would assume.

When Judges, Governments and Law Enforcement are acting like criminals there has to be a point where you seriously consider whether they're just going to kill you.
Perhaps they'd even hold another secret trial to exonerate those who did it.
posted by fullerine at 5:58 AM on May 20 [17 favorites]


To clarify before some concern-trolls think I'm being tinfoil-hatty...
I'm not saying they would, but I assume at some point in this Kafkaesque nightmare you'd think about the logistical process of simply killing you and assume that it was pretty damn feasible.
posted by fullerine at 6:02 AM on May 20 [4 favorites]


This is the opposite of Rule of Law. This is no-kidding totalitarian legalism. I am shocked and dismayed and have no idea where to go from here.
posted by Slap*Happy at 6:08 AM on May 20 [18 favorites]


Goddamn hero, he is.

The whole concept of secret courts and this kind of legalistic hand-washing should be abominable to a country that so prides itself on freedom.
posted by flippant at 6:09 AM on May 20 [2 favorites]


I want to preface what I'm about to say by stressing that what happened to Levison is completely ridiculous, embarrassing to a nation that claims to be a nation of laws, and that we absolutely need legal reform to protect folks like him and services like Lavabit.

However.

There's a very important lesson in here for anyone who wants to build — or use — services that try or claim to protect user privacy. Any system where the protections rely on some secret that's owned by the administrator really provides no protections at all. The best crypto in the world won't protect you from a rubber-hose attack. If you're building a system and you care about user privacy, you have to provide end-to-end cryptography; anything else won't work given the extra-judicial powers granted to the government. If you're using a system, and you care about your privacy, you have to be sure the administrator is completely unprivileged; otherwise you're only as secure as your administrator. The only reason we know anything about the Lavabit situation is because Levison balked at the FBI's requests; do you trust your service providers not to capitulate? You shouldn't have to.

By offering a service claiming security and privacy, but building it in a way that allowed this sort of backdooring, Levison laid the foundation for his own persecution. (For more on this thought, see Moxie Marlinspike's critique of Lavabit.)

The lesson we've learned, over and over again, from the Snowden revelations is that the NSA hasn't been able to actually break cryptography: choose a good algorithm and a strong key, and no amount of technical work will break that crypto. What does break a cryptosystem are people. People choose bad passwords. People practice bad computer hygiene. People will almost always turn over secrets to avoid jail time (or torture; our government does that now, too, remember).
posted by jacobian at 6:13 AM on May 20 [42 favorites]


If that's tinfoil-hatty, consider me tinfoil-hatty. The US government has already admitted that it's fine with killing people based on metadata and with killing U.S. citizens without a trial, not to mention torture, so it doesn't seem like a stretch at all that they might kill a troublesome citizen with crazy ideas about Constitutional protections and the rule of law.
posted by johnofjack at 6:17 AM on May 20 [10 favorites]


[This response was self-censored. That's what the idea of the US is now.]
posted by pompomtom at 6:22 AM on May 20 [10 favorites]


Jacobian, an unprivileged administrator won't save you because the Feds can compel them to alter the client-side software to leak your keys. Just alter the javascript served to your browser, or compel Google to alter your browser, or Microsoft to alter your OS.

If your OS started up a keylogger buried deep in the kernel whenever a network connection to lavabit.com was opened, how would you ever know?
posted by ryanrs at 6:42 AM on May 20 [5 favorites]


the prosecution also argued that my users had no expectation of privacy, even though the service I provided – encryption – is designed for users' privacy

In the thread yesterday I was talking about how meaningful self-governance requires the body politic to exercise informed consent. What was the basis for the government's argument about privacy expectations? I'm guessing that Smith v. Maryland was interpreted by the prosecution to some new extreme — telephone companies keep call records that appear on your bill, therefore you have no reasonable expectation to privacy from an encrypted email service.

If we are forbidden from knowing how the government interprets the law, and if the meaning of law is argued in secret, and if secret decisions cannot or are not reviewed by higher courts, then the legitimacy of our self-governance is slowly eroded.

I feel like I frequently make good-faith attempts to understand the beliefs of those who defend current surveillance and government secrecy practices. I still am not sure whether they believe it is possible for people to exercise informed consent to these programs. I still am not sure why or even if they believe that current practices strike an appropriate balance between the competing, legitimate needs for transparency and secrecy.
posted by compartment at 6:45 AM on May 20 [3 favorites]


jacobian: The lesson we've learned, over and over again, from the Snowden revelations is that the NSA hasn't been able to actually break cryptography

If they could, not only would it be above top secret but used so sparingly as to keep up that appearance. Think of the plot of Cryptonomicon; if you tip your hand that you have your hooks in their encryption scheme, it's game over. If you can make it seem like a random lucky strike that you foil some plans and let others slide, you can keep the code breaking capacity under wraps.
posted by dr_dank at 6:56 AM on May 20 [3 favorites]


ryanrs: an unprivileged administrator won't save you because the Feds can compel them to alter the client-side software to leak your keys. Just alter the javascript served to your browser, or compel Google to alter your browser, or Microsoft to alter your OS.

I built and currently operate a secure-storage service where the client selects its own key during enrollment, and never provides the key to the server. There's a bit of extra key jiggery to help the user not have a bare private key around, but the user can defeat it if desired, or use other procedures to get better protection for his key.

You have put your finger on the main vulnerability, though: the Feds can force me to send key-generation software that generates weak keys, or sends the keys to a little room in San Francisco or whatever. However, since the storage protocol is open, you don't have to use my Javascript to generate your keys or encrypt your data. As long as you put the data in the correct form, my servers will store it for you (and give it back when you ask for it).

That has two benefits: first, if you've got a tin-foil hat but also cloud-storage needs, you can roll your own. And second, if you want to use the storage service from a different platform, you can. Implementation of a simple access client is a couple days' work.
posted by spacewrench at 7:08 AM on May 20 [12 favorites]


I also discovered that as a third party in a federal criminal indictment, I had no right to counsel. After all, only my property was in jeopardy – not my liberty. Finally, I was forced to choose between appearing alone or facing a bench warrant for my arrest.

So neither the person nor the company can be guaranteed a lawyer during proceedings but the person can be arrested for failing to show?

HAHAHAHAHAHAHAHAHAHA
posted by Slackermagee at 7:09 AM on May 20 [8 favorites]


The continuing shining of light into these dark recesses of government excess and over reaching is extremely important. Kudos to Ladar for this article. Send it to your senator and congress person. The facts are odious to people in both parties so it matters now which party the person who represents you is in. I would certainly emphasize the "no expectation of privacy" issue.

This differs from a criminal action against Ladar - it is evidence gathering for a separate matter. The system of rights breaks down in these cases because the people against whom the pressure is being applied aren't charged with a criminal offense. No right to a government attorney, but you can always bring your own. However, the trial will go on without a lawyer if you are unable to get one there, a competent one. I think this also played into the rulings about outside experts. Those would have been harder to justify if a right to counsel existed.
posted by caddis at 7:16 AM on May 20 [2 favorites]


Sorry, but I don't see this as some massive defense of privacy, unless we want to start labelling the Fourth Amendment as an invasion of privacy. The whole problem was that he thought that he could use the rest of his user base to defy a court order, which the courts were never going to allow. So they shot the hostage, so to speak. The lesson here is that you have to keep the law in mind when you design your system - technology, like ignorance, is no excuse.
posted by NoxAeternum at 7:48 AM on May 20 [1 favorite]


Rule of law is a lie when it's not between equals.
posted by wuwei at 7:52 AM on May 20 [3 favorites]



Having gotten a gag order on a National Security Letter, I can tell you it is terrifying. One thing that helped in the Internet Archive's case was an existing relationship with the EFF. Since no one could know of the proceedings (not our board, not my family, not our management), if we had to pay for legal help it would have shown up on our books and questions raised. Pro-bono attorneys were key. Broad support for the EFF and the ACLU may be helping your friends even though you may never hear about it. (They both did great jobs in this case).
posted by brewsterkahle at 8:03 AM on May 20 [43 favorites]


Here's a transcript of the appeals court ruling on the case. I think it's worth reading as it gives a blow-by-blow summary of Levison's back and forth negotiations with the government. I don't think that Levison's account in the FPP is entirely candid or entirely even-handed.
posted by yoink at 8:08 AM on May 20 [1 favorite]


Sorry, but I don't see this as some massive defense of privacy, unless we want to start labelling the Fourth Amendment as an invasion of privacy. The whole problem was that he thought that he could use the rest of his user base to defy a court order, which the courts were never going to allow. So they shot the hostage, so to speak. The lesson here is that you have to keep the law in mind when you design your system - technology, like ignorance, is no excuse.

Surely the issue isn't the ruling, but the process which was 1) secret and 2) structured to block his access to legal counsel and 3) some other stuff I'm not able to articulate right now?

Here's a transcript of the appeals court ruling on the case. I think it's worth reading as it gives a blow-by-blow summary of Levison's back and forth negotiations with the government. I don't think that Levison's account in the FPP is entirely candid or entirely even-handed.

The appeals court ruling reads to me as though there was inconsistent communication from the government, in a position of great authority, toward a citizen who was forced to stumble through an entirely bizarre and technical legal scenario without informed counsel or guidance during crucial stages--in particular, even when he had counsel, the counsel had no time to prepare or gather facts.
posted by jsturgill at 8:44 AM on May 20 [2 favorites]


It does seem, as a layman, that if we're going to have a mechanism whereby government agencies can gain access (via a judge) to an individual's communications, this has to not compromise the security of communication of other individuals for which a judge has not granted such access. Who could resist the temptation otherwise? And then we're into mass surveillance.

So Lavabit needed a different SSL key for each customer?
posted by alasdair at 8:44 AM on May 20 [1 favorite]


"I don't think that Levison's account in the FPP is entirely candid or entirely even-handed."

just from the epistemological perspective, how does the credibility of a federal court rank against that of a citizen who is a noted privacy advocate these days?

okay, i have a little box here, about twice the width and length of a deck of cards. it has a keyboard, a display and a switch for entering a key in one position, plaintext in the other. it's airgapped from my main box, so all the malware from my favorite porn/fetish sites can't reach it. i can send secure messages to alice and bob by emailing them whatever appears in the display, which looks something like "ciw95gnxdivttx", the usual "catlike typing detected". when we all have these little boxes, and use them, the government has insufficient cryptoanalytic resources to figure out what we're all saying. let's get it on!
posted by bruce at 8:45 AM on May 20


Who could resist the temptation otherwise?

According to the court, the government totally could:
The court also found it reasonable that the Government would not collect all users’ data, even if the encryption keys would practically enable the Government to access all that data. (p. 16 of the transcript)
posted by cjelli at 8:52 AM on May 20


I'd agree that Levison comes across as a bit weaselly in his dealings in the court, but I can't actually blame him for this because adequate counsel would have known the proper objections to raise and Levison quite clearly did not (and why should he? He's not a lawyer). I have much more sympathy with Levison's attempts to protect the many customers who were not a target of the (supposedly) narrow order but who would have had their own communications compromised if Levison complied than I do for the court, who seemed indifferent to the fact that Levison was clearly in well over his head and deserved adequate counsel.

The appeals court refused to hear objections which were not raised earlier, which adequately prepared counsel would have known to raise and which Levison did not, so it's not actually coming across any better to me than Levison does--worse, in fact, since it's using its own knowledge of proper procedure to ignore issues it doesn't care to address while pretending it has no other choice. In short, the court here is abusing its power, rubberstamping government overreach, and blaming private citizens for not knowing things they had no way of knowing.

tl;dr:
The deck was stacked; Levison had no chance; the courts knew it and didn't care.
posted by johnofjack at 8:59 AM on May 20 [5 favorites]


The appeals ruling is interesting reading, but it doesn't seem to contradict Levison's complaint that the case proceeded before he could retain adequate representation. In fact the appeals ruling admits that he was underrepresented, and confusingly claims that he should not have been allowed to proceed pro se. Much of the ruling cites inadequate arguments made by Lavabit -- i.e, an inadequate defense.

It's also clear from the ruling that the government expected a real-time pen/trap capability to be implemented immediately, and delay was viewed as "hostility". OTOH the government is allowed to pinky-swear that they'll only look at certain metadata and the court agrees.

Nothing here contradicts the premise that if you want to run a communications service in the USA, you have to either (1) roll over when LE comes knocking or (2) retain a team of lawyers ready to fly to Virginia at a moment's notice. The confusing part is why Levison hadn't already realized this.
posted by RobotVoodooPower at 9:00 AM on May 20 [2 favorites]


If Levinson wanted to run the kind of business he purported to want to run, not having counsel when responding to an issue of this stature (when he clearly had had counsel at an earlier point in the precedings) is criminally negligent. He should have his pants sued off by everyone he put at risk. Good intentions and a little tech are not nearly enough.
posted by JohnLewis at 9:04 AM on May 20 [2 favorites]


You can't justify withholding keys from the government on the basis that they could be used to improperly capture data beyond what is authorized by the search warrant.

The remedy for such an illegal search should be determined after it happens. Presupposing it will happen, then disobeying lawful orders on the basis of that strictly hypothetical future event seems unworkable.

I really hate just about everything in this case, but that is a weak argument by Levison.
posted by ryanrs at 9:05 AM on May 20


The thing that gets me about gag orders and secret laws is aren't they a HUGE target for abuse by foreign agents? Say Russia or some other nation state wants to put a sniffer on a network or fish for blackmail material in a valuable target's email. They just send in two guys in suits with fake FBI credentials and a gag letter.
posted by fings at 9:09 AM on May 20 [10 favorites]


You can't justify withholding keys from the government on the basis that they could be used to improperly capture data beyond what is authorized by the search warrant.

Maybe, but according to the appeals court Levison was not able to raise this argument in a legal context -- it was a "vague statement of personal preference."
posted by RobotVoodooPower at 9:21 AM on May 20 [1 favorite]


Maybe, but according to the appeals court Levison was not able to raise this argument in a legal context -- it was a "vague statement of personal preference."

This is wrong. The appeals court said he did not raise an argument, he merely phrased a personal preference. That's a big big difference. The onus was on Levison to address such an important issue in the appropriate legal form. In other words, the fuck up here is Levison, not the Government.

Why would you mis-state this very clear distinction? The appeals court was neither unreasonable nor arbitrary in its ruling.
posted by JohnLewis at 9:29 AM on May 20


The remedy for such an illegal search should be determined after it happens. Presupposing it will happen, then disobeying lawful orders on the basis of that strictly hypothetical future event seems unworkable.

Except that at the time, we had just learned that the FISA court was a farce and the NSA was actually collecting everyone's data while lying about it. It's not too big of a leap to assume they were planning to do the same thing in this case. When the laws are unjust and the courts are corrupt, civil disobedience is a valid choice.
posted by bradf at 9:32 AM on May 20


So neither the person nor the company can be guaranteed a lawyer during proceedings but the person can be arrested for failing to show?

Not to minimize what happened here, but isn't that also true in debt collection cases?
posted by desjardins at 9:33 AM on May 20 [1 favorite]


The author left out the best part:
Despite the unequivocal language of the August 1 Order,
Lavabit dallied and did not comply. Just before the 5:00 pm
August 2 deadline, for instance, 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. The Government instructed Lavabit to provide the keys in
an industry-standard electronic format by the morning of August
5. Lavabit did not respond.
posted by kiltedtaco at 9:48 AM on May 20 [3 favorites]


Basically, Levinson tried to argue that his service was effectively warrant-proof, because to effectively serve a warrant against a specific individual would necessarily compromise the rest of his clients, thanks to his system design.

Turns out that the courts really don't appreciate it when you take hostages (and may consider the act to be a hostile one.) Furthermore, the fact that he was scrambling for a lawyer is incompetence on his part, because he should have had counsel on retainer as part of his business plan.

The moral of the story is that you need to have a plan for dealing with legal requests that isn't just trying to appeal to technology, because the courts rightfully won't care.
posted by NoxAeternum at 9:58 AM on May 20


Right, that was why he got the contempt charge - he tried to be cute with the court and learned the hard way that the court has ways of dealing with cute.
posted by NoxAeternum at 10:01 AM on May 20


Turns out that the courts really don't appreciate it when you take hostages (and may consider the act to be a hostile one.) Furthermore, the fact that he was scrambling for a lawyer is incompetence on his part, because he should have had counsel on retainer as part of his business plan.

The government refused to pay him to program a method to intercept and communicate only the target's communication metadata. Why was his proposal unreasonable? Why was refusing it reasonable? Why is it reasonable to assume the government would decline to store all of the metadata captured by the pen register? How would anyone know if they did, and what remedies would be open to them? Why is it unreasonable to assume that Levinson had a plan to acquire legal advice for typical business legalities that were not relevant under an incredibly short timeline, while under a gag order? Why is it reasonable that Levinson was unable to bring in outside experts to help him in his case, while the government was able to call on the resources of the NSA to present its case?

Why is it that when an egg is crushed against a wall, you feel sympathy for the wall and not the egg?
posted by jsturgill at 10:05 AM on May 20 [21 favorites]


Because servility to power is a mark of the serious person.
posted by wuwei at 10:06 AM on May 20 [22 favorites]


Look, argument from ideology just isn't very effective. There are certainly problems with what the Government did here, and with what they can do, but Levison acted like amateurs when their claim was that they wanted to play with the biggest pros on the block. Lavabit, in this instance, was no different from the armed right wing "militias" who try to take on the US military. There is no guarantee of fairness, but there are processes and procedures that you have to follow to be taken seriously. No one can legitimately argue that Levison was treated unfairly because he didn't exhaust his opportunities for fair hearing. Had he, we would be having a different kind of conversation.

But, I guess the really serious folks don't let facts get in their way.
posted by JohnLewis at 10:13 AM on May 20 [1 favorite]


JohnLewis, is your position that the law isn't ideological?
posted by wuwei at 10:17 AM on May 20 [1 favorite]


There are certainly problems with what the Government did here, and with what they can do, but Levison acted like amateurs when their claim was that they wanted to play with the biggest pros on the block.

(emphasis added)

I guess I'm approaching it from the angle where I'm a citizen, not Levison, so I'm more troubled by the problems in the justice system and the government's actions than I am with the problems related to a small business that had a great technical product but failed to execute in a secondary area that impacted its core business enough to cause it to shut down.

Generally speaking, small businesses making mistakes and shutting down isn't really something I'm worried about in the same way as, say, problems in a legal system that has the power to take away my liberty, privacy, property, and life.
posted by jsturgill at 10:18 AM on May 20 [8 favorites]


JohnLewis, is your position that the law isn't ideological?

Of course not. My position is that the argument that he shouldn't have had to argue this request legally is ideological, and the complaints about how he was railroaded are necessarily ideological since he appears to be a legal fuckup.

Basically, I don't think you get to cry "UNFAIR!" if you didn't exhaust the fairness that was granted to you.
posted by JohnLewis at 10:35 AM on May 20


"Lavabit, in this instance, was no different from the armed right wing 'militias' who try to take on the US military..."

holy shit johnlewis! first of all, why is "militias" in scare quotes? isn't ten armed men, or women for that matter, acting with a single purpose, a minyan for a militia? can you cite an instance where an american militia took on the US military? waco, ruby ridge and other instances where the government brought its power right to the homes of its adversaries don't count.

i'm into privacy too, i even proposed a fix upthread. johnlewis, does that make me an enemy of my country? am i some kind of terrist? you may speak freely, i promise not to take any action on account of it.
posted by bruce at 10:36 AM on May 20


problems in a legal system that has the power to take away my liberty, privacy, property, and life.

What I'm saying is that I don't think that this case demonstrates that power from the government, regardless of how one feels about secret surveillance. If the power of secret surveillance is enough, then this case literally shouldn't matter at all to anyone's concerns about liberty, privacy, property, and life.

waco, ruby ridge and other instances where the government brought its power right to the homes of its adversaries don't count.

Well, excluding Waco, I would indeed say that those instances count. Those were the ones I was referring to. Scare quotes because I think it grants too much legitimacy to whackos to refer to them as a militia un-ironically.
posted by JohnLewis at 10:40 AM on May 20


The government refused to pay him to program a method to intercept and communicate only the target's communication metadata. Why was his proposal unreasonable? Why was refusing it reasonable?

Because doing so would have a) taken time and b) potentially tipped off the target.

Why is it reasonable to assume the government would decline to store all of the metadata captured by the pen register? How would anyone know if they did, and what remedies would be open to them?

Anything beyond the scope of the search warrant could be quashed in court.

Why is it unreasonable to assume that Levinson had a plan to acquire legal advice for typical business legalities that were not relevant under an incredibly short timeline, while under a gag order?

Because "how we will deal with a search warrant" is basic contingency planning for an email provider.

Why is it reasonable that Levinson was unable to bring in outside experts to help him in his case, while the government was able to call on the resources of the NSA to present its case?

Because it sounds like he was just continuing his fundamental mistake of trying to treat this as a purely technological issue, instead of realizing that this was a legal matter. Again, the court is not going to allow you to operate immune to its orders, no matter how good an argument you think you have for doing so.

Why is it that when an egg is crushed against a wall, you feel sympathy for the wall and not the egg?

Just because you see him as a victim doesn't mean I have to agree. I find this trend of techies trying to use technology to suborn the law to be a dangerous one.
posted by NoxAeternum at 10:45 AM on May 20


The appeals court said he did not raise an argument, he merely phrased a personal preference.

I understand that -- IANAL, so I used "was not able to" to mean "was not equipped to", not "was prevented from".
posted by RobotVoodooPower at 11:01 AM on May 20


NoxAeternum, I'd hate to unintentionally dominate the thread, so I'm going to refrain from going line-by-line through your answers to those questions. But I don't find your responses particularly compelling and I'd hate for you to take my silence as a sign of agreement.
posted by jsturgill at 11:05 AM on May 20


If it's a secret court that venue shops and denies counsel and appropriate due process, it's not The Law - it's something far more dangerous than a libertarian who read the Cryptonomicon.
posted by Slap*Happy at 11:08 AM on May 20 [3 favorites]


Because "how we will deal with a search warrant" is basic contingency planning for an email provider.

A search warrant for one account is a very different thing to a demand for the SSL keys.
posted by jaduncan at 11:11 AM on May 20 [3 favorites]


lol@johnlewis, ruby ridge was just one guy. his name is randy weaver. he had a son. as i understand it, the son (armed) was peacefully walking his dog, when a man popped out of a bush and shot the dog, whereupon, the son shot the man. the man turned out to be a US marshal, and he pre-emptively shot the dog because he feared that it was about to detect his presence. i respectfully submit to you that it is not entirely unreasonable to shoot someone who just popped out of a bush and shot your dog, whether it's a government agent or a nun.

mr. weaver also had a wife. she opened the front door with a baby in her arms, and a government sniper blasted her right between the tits, miraculously missing the baby. later on, this was referred to in court as an "unconstitutional rule of engagement."

one man does not a militia make, otherwise, every single garden-variety criminal who ever holed up in his home for an armed stand-off would constitute a militia.
posted by bruce at 11:13 AM on May 20 [2 favorites]


The remedy for such an illegal search should be determined after it happens. Presupposing it will happen, then disobeying lawful orders on the basis of that strictly hypothetical future event seems unworkable.

It does seem unworkable, but since the Supreme Court tried a case premised on just that hypothetical event, and dismissed it based on false statements made by the DOJ -- it seems we have to ask that question more often.
posted by RobotVoodooPower at 11:22 AM on May 20 [1 favorite]


I find this trend of techies trying to use technology to suborn the law to be a dangerous one.

There is no rule of law anymore. We have let the cancer of totalitarianism take root in our democracy, and we are now witnessing the results of the metastasis after the fact. Secret courts, secret assassinations, secret torture, secret body counts, secret wars, and secret surveillance of entire populations. This is not democracy, and if you think it is then we have some very fundamental disagreements about what constitutes a free and open society.

Remember, the only reason we know about most of this is specifically because people of good conscience leaked this information. If the government had had its way the American people, and everyone else, would still be in the dark about most of the practices listed above. All practices, mind you, which have historically been associated with classic totalitarianism. So we now find ourselves(some of us at least) living in a country which purports to be a democracy, but which wants to secretly conduct itself like a totalitarian state.

It would seem to me that "techies trying to use technology to suborn the law" is at best a minor problem, which some would actually call principled resistance to a system run amok that has shown itself time and time again to be antithetical to the rule of law.
posted by AElfwine Evenstar at 11:22 AM on May 20 [26 favorites]


I find this trend of techies trying to use technology to suborn the law to be a dangerous one.

Lest anyone think that's a hyperbolic reading of Levison's statements in the Guardian, it's really not -- per this recent piece on the contempt order:
Levison did not immediately comment on the contempt order, which carries a fine of thousands of dollars...[but later added] "I haven't read the court's opinion, nor sought advice from lawyers on any possible legal strategy, so that is still pending. My focus as of late has been on building a technological solution [in the form of the DarkMail Alliance]; which would take the decision away from the will of man."
posted by cjelli at 11:26 AM on May 20


A search warrant for one account is a very different thing to a demand for the SSL keys.

The reason the keys were ordered to be surrendered was because it was the only way to execute the search warrant, given how Lavabit was built. Which is the whole issue.
posted by NoxAeternum at 11:50 AM on May 20


Anything beyond the scope of the search warrant could be quashed in court.

Seems legit.
posted by ChurchHatesTucker at 11:58 AM on May 20 [7 favorites]


By ... building it in a way that allowed this sort of backdooring, Levison laid the foundation for his own persecution.... What does break a cryptosystem are people.

No argument with your 'hindsight is 20-20' conclusions, but Lavabit started up in 2004. Few outside of 'the elect' had any idea TEN YEARS AGO what the US had unleashed, let alone how nuts the courts would let agents go (in now-obvious contradiction to long-established limits). Lavabit was was popular with many *precisely because* it offered what was, at the time, "overkill" protection. Even Phil Zimmerman was taken-aback, for chrissakes.
posted by Twang at 12:03 PM on May 20 [4 favorites]


In 2004 nobody thought their email provider could receive a Pen/Trap order?
posted by kiltedtaco at 12:09 PM on May 20


no, noxaeternum, that is a false statement. the search warrant was executed when lavabit duly provided the metadata in its encrypted form.

imagine that metafilter used the same encryption protocols as lavabit. the fbi serves mathowie with a warrant for all of the comments of the user "bruce". mathowie complies, and the comments look like riuvhgbt47rfbnjlk09y6r. the fbi demands mathowie's private keys, which would enable it to shine a flashlight up the ass of every single user on this site.

the phrase "techies trying to use technology to suborn the law" makes me laugh. i have been telling people for DECADES that technology runs faster than the law. techies aren't inherently evil, any more than tornadoes, it's what they do. evil comes from context.

i like this thread, because it provides the commenters the opportunity to show where they stand. some of us are statist, and some of us are libertarian. you can't be both at the same time, and you can't be a conscientous objecter, because either my side or the other will run right over your ass.
posted by bruce at 12:10 PM on May 20


The reason the keys were ordered to be surrendered was because it was the only way to execute the search warrant, given how Lavabit was built. Which is the whole issue.

No. You fail to consider that they might have taken a more proportionate approach and asked Lavabit to themselves decrypt the data for one account and provide that *in exactly the same way* that Google will hand over the data for a named account without handing over their SSL keys. The very fact that this was not an option is heavily indicative that they wished to go on a fishing trip.

But, you know, I'm curious to hear why you believe the order I propose wasn't even an option.
posted by jaduncan at 12:17 PM on May 20 [3 favorites]


In 2004 nobody thought their email provider could receive a Pen/Trap order?

For a specific account? Sure. For ALL THE ACCOUNTS! No.
posted by ChurchHatesTucker at 12:17 PM on May 20 [1 favorite]


Speaking of privacy and surveillance, part two of Frontline's United States of Secrets is on tonight.
posted by homunculus at 12:28 PM on May 20 [2 favorites]


some of us are statist, and some of us are libertarian. you can't be both at the same time

Yes, you can. The world works in binary, but not the way you think. It's all dithered shades, interpolated in realtime.

and you can't be a conscientous objecter, because either my side or the other will run right over your ass.

Yes, you can. People working together can make one hell of a speedbump.
posted by Slap*Happy at 12:33 PM on May 20 [2 favorites]


There's no evidence that the Pen/Trap was for "all the accounts". From the appeals court ruling: "In 2013, the United States sought to obtain certain information about a target in a criminal investigation."
posted by kiltedtaco at 12:35 PM on May 20


>> In 2004 nobody thought their email provider could receive a Pen/Trap order?
> For a specific account? Sure. For ALL THE ACCOUNTS! No.


Lavabit wasn't written with the ability to obey search warrants or administrative subpoenas which were a thing in 2004. Thus one account became all the accounts.

Instead of trying to bring security to webmail, I wish someone had rescued the mess that PGP became after the NAI acquisition and PGP Corp founding. Better GnuPG integration into Thunderbird et al. earlier on and maybe more people would have been protected.
posted by morganw at 12:37 PM on May 20 [1 favorite]


Lavabit wasn't written with the ability to obey search warrants or administrative subpoenas which were a thing in 2004.

It was. They complied. The Feds weren't happy with what they got and demanded something more.
posted by ChurchHatesTucker at 12:42 PM on May 20 [2 favorites]


No. You fail to consider that they might have taken a more proportionate approach and asked Lavabit to themselves decrypt the data for one account and provide that *in exactly the same way* that Google will hand over the data for a named account without handing over their SSL keys. The very fact that this was not an option is heavily indicative that they wished to go on a fishing trip.

But, you know, I'm curious to hear why you believe the order I propose wasn't even an option.


Because it was never on the table:

In the summer of 2013, Lavabit was ordered to provide real-time e-mail monitoring of one of its users, widely believed to be Edward Snowden, the former NSA contractor-turned-leaker. When Lavabit told the feds that the only way it could hand over communications was through an internal process that would deliver results 60 days after any communication was sent, the authorities returned with a search warrant for Lavabit's SSL keys, which could decrypt the traffic of all of Lavabit's users. Ladar Levison, the CEO of Lavabit, handed over the SSL keys but then shut down his 10-year-old business rather than expose all of Lavabit's users.

In short, he was given a legal order to do exactly what you proposed and refused to comply, at which point he was ordered to surrender the keys.
posted by NoxAeternum at 12:45 PM on May 20 [1 favorite]


[Comment removed, maybe let's skip the anal rape analogies.]
posted by cortex at 12:54 PM on May 20


But the thing is, they only requested the keys after Levison showed that he would not comply with the initial court order.
posted by NoxAeternum at 12:54 PM on May 20


I wonder if MeFi was ever served an NSL, say to de anonymize an Ask...
posted by Joe Chip at 12:57 PM on May 20


But the thing is, they only requested the keys after Levison showed that he would not comply with the initial court order.

Gods forbid he should consult with a lawyer.

Actually, the gods can stay their hand. The court will take care of that impertinence.
posted by ChurchHatesTucker at 1:00 PM on May 20


(maxwell smart voice): sorry about that, chief.
posted by bruce at 1:03 PM on May 20 [1 favorite]


Gods forbid he should consult with a lawyer.

Actually, the gods can stay their hand. The court will take care of that impertinence.


Again, from the Ars piece I linked to:

In the summer of 2013, Lavabit was ordered to provide real-time e-mail monitoring of one of its users, widely believed to be Edward Snowden, the former NSA contractor-turned-leaker. When Lavabit told the feds that the only way it could hand over communications was through an internal process that would deliver results 60 days after any communication was sent, the authorities returned with a search warrant for Lavabit's SSL keys, which could decrypt the traffic of all of Lavabit's users.

He tried to tell the court that he would not comply with its order beyond Lavabit policies, without giving any reason beyond "these are our policies." When it became clear that he would not comply, the court then ordered the removal of the middleman.
posted by NoxAeternum at 1:12 PM on May 20 [1 favorite]


Everything is Broken (medium.com)

Excellent rant about software with cool HTML5-ey decorations.

posted by mmrtnt at 1:18 PM on May 20


Excellent rant about software with cool HTML5-ey decorations.

For clarification, that excellent rant is about software security, and the page layout has nice HTML5-ey decorations.
posted by el io at 1:22 PM on May 20


jacobian's comment is excellent on this topic. The more general lesson (from this and many others), if your adversary is a state level player: The browser is not an acceptable platform. You cannot make the browser an acceptable platform Do not trying to do secure communication in the web browser. This has been shown repeatedly, through horribly broken browser crypto. Just don't do it.

The Everything is Broken link from above points out that many people cannot install software on the computers they use. This is a good point, and we should try to think of ways to address this. However, promoting crypto in the browser leads to a false sense of security, as the article points out.
posted by yeahwhatever at 1:34 PM on May 20


I think a fair characterization of events is that Ladar engaged in civil disobedience and there were lawyers involved with this process.

Truth of the matter is, I think thousands of Americans, if given the choice, would go to jail rather than give the Federal government information that could hurt Snowden (even non-Libertarians).
posted by el io at 1:39 PM on May 20


He tried to tell the court that he would not comply with its order beyond Lavabit policies, without giving any reason beyond "these are our policies."

C.f. The CFAA
posted by ChurchHatesTucker at 1:43 PM on May 20


I think a fair characterization of events is that Ladar engaged in civil disobedience and there were lawyers involved with this process.

I don't. I think a fair characterization is that Levison handled things so poorly that he was basically negligent, and that this raises legitimate questions about how seriously we should take him and his enterprise. The notion that you would try to run an email service without retained representation, let alone an email service marketed as protecting users privacy, is mind boggling. I think the fact that people are angry about surveillance is leading them to cut a lot of slack to someone who seems to have not had the slightest idea (in any meaningful way that might have helped him accomplish his mission) what he was doing.

It's actually quite disappointing to see, since it suggests that the only requirement is that someone be on your "side" rather than that we expect to see a basic level of competence from the people who are claiming to be solving the problems we all face.
posted by JohnLewis at 1:52 PM on May 20 [1 favorite]


I think a fair characterization of events is that Ladar engaged in civil disobedience and there were lawyers involved with this process.

You can make that argument but even if we accept that this is what he was doing, the whole point of Civil Disobedience is that you know it will lead to punitive action by the state. It can be a perfectly honorable strategy to say "I will break this law because I believe it to be unjust" or "I will break this law because I believe that the attention that will bring to my cause is more important than the principle enshrined in the law." But claiming "this is Civil Disobedience" doesn't magically make the law go away. You don't get to be all mystified that the mean government continued to enforce its laws despite the obvious nobility of your motives.
posted by yoink at 1:57 PM on May 20 [5 favorites]


okay, i have a little box here, about twice the width and length of a deck of cards. it has a keyboard, a display and a switch for entering a key in one position, plaintext in the other. it's airgapped from my main box, so all the malware from my favorite porn/fetish sites can't reach it. i can send secure messages to alice and bob by emailing them whatever appears in the display, which looks something like "ciw95gnxdivttx", the usual "catlike typing detected". when we all have these little boxes, and use them, the government has insufficient cryptoanalytic resources to figure out what we're all saying. let's get it on!

Do you actually have such a box, and if so, where can we obtain them? (Or the parts and open-source plans to assemble them ourselves)

2014 Christmas gift shopping: Solved!
posted by anonymisc at 2:04 PM on May 20


for now, the box exists only in my head, but i believe that with sufficient concentration and effort, i can sing it into being.
posted by bruce at 2:19 PM on May 20 [2 favorites]


Arduino kit, open-source project, I'd be all over that.
posted by anonymisc at 2:25 PM on May 20


i think you could do it with a raspberry pi, hooked up to a straight-from-china liquid crystal display bar and a keyboard like on a blackberry, a hole in the side for the switch, and a battery compartment. whoever finishes this project will be like prometheus bringing privacy down from olympus.
posted by bruce at 2:27 PM on May 20 [2 favorites]


people who are claiming to be solving the problems we all face.

Did someone actually do that or is this just a straw man you've made up in your own head? Either way, Levinson could very well be negligent in running his business, but that would really have fuck all to do with the issues he raises about government secrecy.
posted by AElfwine Evenstar at 2:38 PM on May 20


He tried to tell the court that he would not comply with its order beyond Lavabit policies, without giving any reason beyond "these are our policies." When it became clear that he would not comply, the court then ordered the removal of the middleman.

So at that point get an injunction to force them to decrypt it more rapidly. There's still no need for the SSL keys, and certainly no need to have the government look rather than a mutually selected third party.
posted by jaduncan at 2:40 PM on May 20


>> Lavabit wasn't written with the ability to obey search warrants or administrative subpoenas[...]
> It was. They complied. The Feds weren't happy with what they got and demanded something more.


The article says they asked for a real-time intercept and access to stored email:
But that wasn't enough. The federal agents then claimed that their court order required me to surrender my company's private encryption keys, and I balked. What they said they needed were customer passwords – which were sent securely – so that they could access the plain-text versions of messages from customers using my company's encrypted storage feature.
If the system had been built so either
1) Lavabit had (long-term, not ephemeral) copies of the individual account keys so it could decrypt stored email.
or
2) Lavabit only handed encrypted copies of email archives to users that they decrypted on their own computers

They could have (1) complied without handing over the master keys or (2) been completely unable to help the Feds.

> force them to decrypt it more rapidly

I thought the problem was that the Lavabit servers only had users' keys ephemerally, so Ladar would need to add key capture, then wait for the targeted user to log in. Actually, even with the SSL key, isn't that still required?
posted by morganw at 2:44 PM on May 20


Remember, the only reason we know about most of this is specifically because people of good conscience leaked this information. If the government had had its way the American people, and everyone else, would still be in the dark about most of the practices listed above.

Consider that this is quite likely the tip of the iceberg. There are an unknown number of other secret search cases we will never hear about. There is no practical way citizens can practice informed consent about this activity.
posted by odinsdream at 2:57 PM on May 20 [2 favorites]


I built and currently operate a secure-storage service where the client selects its own key during enrollment, and never provides the key to the server. There's a bit of extra key jiggery to help the user not have a bare private key around, but the user can defeat it if desired, or use other procedures to get better protection for his key.

I have to wonder how long it is before this sort of service is not only vilified as some sort of thing only people storing child porn and other undesirables that are easy to hate would use, but is also defacto illegal in the same way that drug paraphernalia is.

The more i hear about crackdowns on things like lavabit, the more i think that we're right on the cusp of a serious crackdown on a lot of these sorts of services.

It's quickly going to become something like AWS/other cloud storage service+your own encryption solution you have to manually combine yourself if you want to do anything like this at all. It's going to be the software version of the lower receiver being the "gun".
posted by emptythought at 2:57 PM on May 20 [3 favorites]


So at that point get an injunction to force them to decrypt it more rapidly. There's still no need for the SSL keys, and certainly no need to have the government look rather than a mutually selected third party.

So, at what point do the courts get to say that someone is refusing to obey a court order? He had refused to obey the initial search warrant - why should they believe an injunction would be obeyed?
posted by NoxAeternum at 3:03 PM on May 20


emptythought: Or, these services actually develop policies for handling court orders that isn't just a middle finger. This is why his incompetence actually does effect the discussion - because he didn't have a contingency plan for handling a court order, he found himself flat-footed when he got one. Then he compounded matters by trying to negotiate with the court.
posted by NoxAeternum at 3:09 PM on May 20


(re: Lavabit decrypting the target's traffic themselves and handing only the target's traffic over): In short, he was given a legal order to do exactly what you proposed and refused to comply, at which point he was ordered to surrender the keys.

Unless I'm misunderstanding something, this isn't so. From yoink's link:
On July 13, 2013, four days after the show cause order issued, Levison contacted the Government with his own proposal as to how he would comply with the court’s orders. In particular, Levison suggested that Lavabit would itself collect the Government’s requested data:
I now believe it would be possible to capture the required data ourselves and provide it to the FBI. Specifically the information we’d collect is the login and subsequent logout date and time, the IP address used to connect to the subject email account and [several] non-content headers . . . from any future emails sent or received using the subject account. . .. Note that additional header fields could be captured if provided in advance of my implementation effort.
(J.A. 83.) Levison conditioned his proposal with a requirement that the Government pay him $2,000 for his services. More importantly, Levison also intended to provide the data only “at the conclusion of the 60[-]day period required by the [Pen/Trap] Order . . . [or] intermittently[,] . . . as [his] schedule allow[ed].” (J.A. 83.) If the Government wanted daily updates, Levison demanded an additional $1,500.

The Government rejected Levison’s proposal, explaining that it needed “real-time transmission of results.” (J.A. 83.) Moreover, the Government would have no means to verify the accuracy of the information that Lavabit proposed to provide--a concerning limit given Lavabit’s apparent hostility toward the Government. Levison responded by insisting that the Pen/Trap Order did not require real-time access, but did not otherwise attempt to comply with the Pen/TrapOrder or the June 28 Order.
posted by XMLicious at 3:20 PM on May 20


Yes, that would be noncompliance. A search warrant is not an opportunity to get money from the government. Furthermore, he cut his own throat when he admitted that he possessed the capability to fulfill the order, cutting off that line of defense.
posted by NoxAeternum at 3:27 PM on May 20


A search warrant is not an opportunity to get money from the government.

I must say, that struck me as the "what was he smoking?" part of that document. I notice he refrains from mentioning the "if only they'd been willing to pay me properly my principles could have been a little more flexible" part of the story in his Guardian narrative.
posted by yoink at 3:50 PM on May 20 [1 favorite]


A search warrant is not an opportunity to get money from the government.

Yes it is. His "mistakes" were 1. being a little fish that could instead simply be stomped on in the darkness under cover of secrecy, and 2. believing what he had been told about law applying equally to all.
posted by anonymisc at 4:10 PM on May 20 [5 favorites]


Yes, that would be noncompliance. A search warrant is not an opportunity to get money from the government. Furthermore, he cut his own throat when he admitted that he possessed the capability to fulfill the order, cutting off that line of defense.

Those are reasonable costs to write the required software. He was not asking for an unreasonable amount of money to make a point; he would have broken even with the proposal.
posted by jsturgill at 4:17 PM on May 20


Yes, that would be noncompliance.

No, it's not. You claimed that Lavabit themselves decrypting just the target's metadata and turning it over is "exactly" what the government ordered them to do and they refused to comply with that order. The passage above shows that the truth is the complete opposite: in the words of the appellate court judge himself, Levinson is the one who proposed that only the target's data be turned over but the government rejected that and claimed that the preceding orders could only be satisfied if they got what would provide them full real-time access to everything, metadata and content and any clickstream data the app tracked for all of Lavabit's customers if they so chose.

You can't just bring out the target's bank safe deposit box and show us what's inside, you have to give us the keys to the vault and access to the safe deposit boxes of every customer so we can roam around at our leisure.

Charging two thousand dollars to design and implement a custom surveillance feature in a complex software system isn't taking an "opportunity to get money from the government", it's reasonable at best and more likely a case of being robbed blind by someone who has their boot on your neck. I've seen people make more money for changing the logo on a web site.
posted by XMLicious at 4:42 PM on May 20 [8 favorites]


Charging the government money for wiretaps! Scandalous! Except when done by Big Telecom.

Peasants! Kneel before your Lords!
posted by wuwei at 4:47 PM on May 20 [4 favorites]


The people at HN discuss this with a lot of comprehensive coverage. The timeline at the current first comment, while maybe biased, seems roughly accurate to me.
posted by halifix at 4:59 PM on May 20


I see three interlocking issues here. It doesn't matter whether they're unreasonable when viewed in isolation; the combination is what caused this awful situation.

Firstly, Lavabit was not designed to allow an individual user's data to be extracted. Yes, I know the need for it wasn't really recognised when the system was designed, and I suppose Ladar might not have wanted to pre-emptively signal that he would accede to such a demand. None the less, this was one of the causes.

Secondly, Ladar sucked at negotiation and made stupid demands. He really needed someone to tell him that his (unsuccessful) demand for $1,500 was not worth risking a contempt of court charge. It doesn't matter if he was morally right.

Thirdly, the government's use of gag orders. Lawyers do more than give advice about the law; they can also help you negotiate and stop arguments becoming personal. Ladar needed better advice, and the gag orders made it harder for him to get that advice.

In my experience, geeks often don't understand that the real world has systems of its own. Sure, they talk about "rubber hose cryptanalysis", but they act as if it were a literal thing: a thug with a weapon hits you until you comply. In the real world, a court hits you with orders until you comply, or else men with suits take away all your equipment and lock you up. But unlike the literal "thug with a weapon" (against which, arguendo, there is no defense) there are very real defenses against being hit with court orders. Legal defenses are in the class of things like off-site backups and uninterruptable power supplies, not "even a thug with a rubber hose cannot extract my encryption key".

In Ladar's case, he needed a legal adviser at the design stage: he needed someone to discuss what demands might be made, and what his response ought to be at each point. He didn't do this, and he ended up turning over a lot more data than he needed to, and he still got punished.
posted by Joe in Australia at 10:55 PM on May 20 [1 favorite]


Most of the discussion here has been about Ladar being a poor business person making questionable decisions.
Some viewing the bigger picture think that mass surveillance actually increases terrorism and hurts security and that the NSA spying is a power grab.
posted by adamvasco at 12:12 AM on May 21 [3 favorites]


Yes, that would be noncompliance.

Ah. The claim that the FBI need to do it for reasons of possible non-compliance doesn't fit well with your earlier claim that it would have been impossible not to demand the SSL keys for technical reasons. Which do you wish to maintain is true?
posted by jaduncan at 12:19 AM on May 21 [1 favorite]


Most of the discussion here has been about Ladar being a poor business person making questionable decisions.
Some viewing the bigger picture think that mass surveillance actually increases terrorism and hurts security and that the NSA spying is a power grab.


These two things are not mutually exclusive, and at least in my case, my argument is that Ladar is a poor illustration of the latter issue because he appears to be such a fuck up.
posted by JohnLewis at 5:52 AM on May 21 [2 favorites]


my argument is that Ladar is a poor illustration of the latter issue because he appears to be such a fuck up.

He really isn't though - he fucked up the same as you would without this 20/20 hindsight, like I would, like any average American would. It wasn't a simple search warrant, and he was put in a situation where he didn't have much access to legal counsel, and in this kafka-esque system that means he was doomed to fuck up, just as you would be doomed to fuck up, just as the vast majority of society would be.

The vast majority of society is not equipped to flawlessly represent themselves when the government asks them to kill their own baby. That's why we're supposed to be able to have lawyers and those lawyers are supposed to have time to analyze and prepare and be kept informed of proceedings.

I think part of why this resonates with people is that Ladar is an everyman business owner, not a megacorp CEO with a team of slick lawyers on call. There but for the grace of God go I, etc.
posted by anonymisc at 4:43 PM on May 21 [2 favorites]


I have a strong hunch that one of the sins Ladar got hit-by-a-fast-black-truck for was daring to be an "indy" email provider. Consider the model already established by consolidation of the media. Hell, consider the model established by John Rockefeller. Those boys don't herd cats.

You're not a poor businessperson because you refused to be plugged into the pyramid scheme. You're a dead one.
posted by Twang at 6:11 AM on May 22


I think part of why this resonates with people is that Ladar is an everyman business owner, not a megacorp CEO with a team of slick lawyers on call. There but for the grace of God go I, etc.

Again, I think this grants Ladar too much slack. He was a business owner in the privacy/security space, which suggests that he should have thought through his strategy for dealing with challenges to his core business offering. Put another way, his business, writ large, was responding to attempts to subvert the privacy of his clients. He should have accounted for that in his retained representation.

It's not like he owned a car dealership, or a stereo store, and was then caught off guard by a secret government warrant. Were that the case, he would deserve all the slack in the world. Instead, he was a guy who offered to help protect your privacy, who appears to have never thought through the substantial challenges to that privacy.
posted by JohnLewis at 6:34 AM on May 22


who appears to have never thought through the substantial challenges to that privacy.

No, that's your 20/20 hindsight talking again. Remember that this was an unprecedented action (any existing precedent was top secret). Remember that back at that time, people were called raving paranoids - by otherwise reasonable sensible people - for imagining this scenario; that that the government would come down so hard and so fast and with gag orders and secret courts and interference in legal representation all backing demands far beyond any search warrant ever acknowledged as legal or constitutional in an American court of law.

What happened to Ladar was so far beyond what a secure email provider was expected to have to face, that when it did happen it was international news. It was not just reasonable for him to not foresee what was coming, it was probably socially required - you don't trust your email to ISPs run by crazy people.
posted by anonymisc at 10:00 AM on May 22 [2 favorites]


What different strategy could he have used if he were given any subpoena? As far as I can see, it would necessarily have been the same: "I can't give you that information without compromising the privacy of all my clients, which I'm not prepared to do." At which point the prosecutors come back with a new court order saying no, that is exactly what you have to do.

His problems could have been avoided by:
1) Designing the system with perfect forward secrecy; or
2) Designing the system to allow the isolation and outing of any user; or
3) Not being a dick about complying with the initial court order.

Instead, he failed the technical requirements of making a secure mail system (i.e., what he was charging his clients for), and because he apparently didn't get legal advice he was unprepared for the most obvious eventuality: getting a subpoena. Surely any lawyer would have told him "You know, you're advertising this as something that keeps your mail secure from the prying eyes of the government. What will you do if they give you a court order telling you to turn over some information?" It's all very well to say that he was like a deer in the headlights after this happened; what about before? What was his planned response? Figure it out when the time came?
posted by Joe in Australia at 4:46 PM on May 22 [1 favorite]


What was his planned response? Figure it out when the time came?

Businesses do that with more important things than email all the time. If he had been able to obtain counsel in the usual manner, this wouldn't have been an issue and he would have had someone in a tailored suit telling him to not be a jackass.

Again, I think that secret courts that deny you the ability to secure competent representation or disclose to other parties that you're even in court at all is a big deal, while a sole proprietorship being the victim of poor planning and having to shut down is like, so common and un-noteworthy as to not even be worth wasting two seconds talking about.
posted by jsturgill at 8:11 AM on May 27 [1 favorite]


Today is the day we Reset the Net
posted by homunculus at 8:35 PM on June 5


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