Ladar Levison. Photo by Gage Skidmore. September 2013.
This brief by the US Attorney's Office in the Eastern District of Virginia is a thing of beauty and a joy forever, just like the brief by the US attorneys in New Jersey against Weev.
Honestly, the way to fight back against the radical anarchists trying to take over the Internet or civil society with darknets is to use normal, organic law and the courts against them. This is our only hope.
Of course, these geeks loathe organic law and the very notion of the rule of law because they prefer binary code which ultimately is a weapon of force. Code is force without any logic but its own internal literal binary logic -- that's why they love it, it's a great accessory to their grab for power. The force of the state may back up organic law, but it's law that rests on consent of the governed, democratic principles, due process. Code-as-law has none of that. The people of Portlandia may have elected Ron Wydell, but none of us elected Snowden, remember?
Lavabits owner Ladar Levison has danced around like a common 4chan griefer with evasions and dodges and literalisms and Haskelling -- that bit where he printed out the key in tiny fonts in hard copy -- to make the feds have to type it in manually, risking error, to be able to access his stuff -- that was sheer Anonymous malice. Boy, have we see that one before.
Fortunately -- although you would never, ever know this from the tech press because they won't admit it, it's too shameful, ultimately the feds prevailed and Lavabits had to hand over Snowden's emails. They never say it's Snowden, but we all know that it is. He never admits that he handed it over, but the brief explains that he did in the end -- notice how the lurid press coverage of his $2000 a day fine died out because, well, he didn't keep defying a court order and paying the $2000 fine. If anyone knows any proof to the contrary, let's have it.
It's delightful to see how this brief tears apart the anarchist and nihilist logic of Ladar, which is common to the crypto movement that doesn't see anything legitimate in the state whatsoever and parks all morality and ethics in themselves (and we see what their ethics are like when we see Snowden connive to get 25 coworkers' passwords -- in a setting like the NSA where they'd be aware of such a violation normally).
Just as a business cannot prevent the execution of a search warrant by locking its front gate, an electronic communication service provider cannot thwart court-ordered electronic surveillance by refusing to provide necessary information about its systems. That other user information not subject to the warrant was encrypted using the same set of keys is irrelevant the only user data the court permitted the government to obtain was the data described in the pen/trap order and the search warrant. All other data would be filtered electronically, without reaching any human eye. Finally, Lavabit's belief that the orders here compelled a disclosuore that was inconsistent with Lavabit's "business model" makes no difference. Marketing a business as "secure" does not give one license to ignore a District Court of the United States.
At the end, the brief demolishes the iea that there is any violation of the Fourth Amendment because the government "would have the ability (though not the authority) to review other Lavabit users' data."
"This argument is wrong," says the brief plainly, and spells out why:
o the warrant was particular in identifying only the information about one user (Snowden).
o when Lavabit finally complied, "it had no difficulty identification the exact data called for by the warrant"; thus the warrant wa not "defective" or overbroad
o the warrant didn't authorize "rummaging" through all user data or propose "to gain unfettered access to all -- all -- of the data". It asked for one. "Lavabit conflates information that would actually be seen by a human investigator with data that would momentarily pass through the pen/trap device's memory before a computer forever discarded it." The other data would be filtered out "without reaching any human eye'.
o "Lavabit's use of a single lock to secure all its users communications does not mean the government's procurement of Lavabit's key for the purpose of inspecting one usesr's communications is overbroad." The analogy Lavabit used in its brief -- that it was like the government getting a master key to all hotel rooms. Precedent cases are cited here where it was held that "any and all...keys...showing access to, or control of" a residence was not constitutional overbroad."
o "Lavabit's parade of hypotheticals regarding other possible unlawful actions the government might take with the fruits of a lawfully executed search warrant should not invalidate a warrant issued by a neutral magistrated absed on probable cause." That's because, you know, statutes such as the Wiretap Act STRICTLY REGULATE what the government can do. As "rummaging" would then "be a crime," the claim of a hypothetical is not grounds to invalidate a warrant.
This is a really important concept that binary-thinking never, ever get and deliberately don't get, on the NSA or any other case. That is that the government is under the rule of law. It is regulated. There is due process. And the court of law where the case will end up will examine this and throw out what is gained unlawfully. So the investigator has a powerful deterrent not to commit the crime that Lavabit, part of the criminally-minded underground itself, imagines it will commit.
Taken to its logical extension, Lavabit's argument could be used to invalidate any investigative action taken by the government. Rogue agents might abuse any pen/trap device, for example, to illegally and surreptitiously collet data related to phone numbers or email accounts not listed in the authorizing order." They might exceed the location indicated or seize a weapon and use it in a crime. "The possibilities are only limited by the imagination" But, courts 'do not and should not invalidate warrants based on speculation; rater, wheter a particular government act violates the Fourth amendment requires actual facts not just the possibility for harm."
Amen!
In this discussion you can see as in miniature the entire falsity of the entire Snowden Affair -- the claim that hypotheticals or capacities for harm are in fact used for harm when there is no case.
There's another critique from the other, even more radical end of the Crypto Party -- Moxie Marlingspike of Spring Break of Code in Hawaii fame.
There's even a reddit AMA now on this.
The critique from Moxie is mainly on seemingly false advertising that end-to-end encryption would protect users' data. Now, claims Moxie, that is revealed as a lie, since the feds could come calling with a search warrant and compel Lavabits to turn over one user's data.
Sounds an AWFUL LOT like the critique Jacob Appelbaum mounted against the Chinese dissidents' Ultrasurf which he viewed as a competitor to Tor for government funding.
And that's just it. Moxie is a competitor, although not directly with email as far as I know.
But...who uses email? Young kids today don't use email. Moxie is working on software that encrypts mobile messages and communications, and that's what matters increasingly to people. So he's a competitor in that sense, he is also trying to sell an encryption solution.
These people aren't driven by desire for money -- although whatever Moxie got for selling his Whisper thing to Twitter can't have been something he rejected, as it would give him freedom to go on being a geek wandering around the world undermining institutions and governments on a whim.
Rather, they want mind-share and power and influence. Especially in social media. Hence all this chatter and ask-me-anything.
Oh, notice that logo of the Campaign for Liberty? That's a Ron Paul front group.
The radical left and radical right converge around the crypto party stuff as we know. This is not good for genuine liberty.
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