Lavabit and The Definition of US Government Hubris

Graphic by Darth

Graphic by Darth

Well, you know, if you do not WANT the United States Government sniffing in your and your family’s underwear, it is YOUR fault. Silly American citizens with your outdated stupid piece of paper you call the Constitution.

Really, get out if you are a citizen, or an American communication provider, that actually respects American citizen’s rights. These trivialities the American ethos was founded on are “no longer operative” in the minds of the surveillance officers who claim to live to protect us.

Do not even think about trying to protect your private communications with something so anti-American as privacy enabling encryption like Lavabit which only weakly, at best, even deigned to supply.

Any encryption that is capable of protecting an American citizen’s private communication (or even participating in the TOR network) is essentially inherently criminal and cause for potentially being designated a “selector“, if not target, of any number of searches, whether domestically controlled by the one sided ex-parte FISA Court, or hidden under Executive Order 12333, or done under foreign collection status and deemed “incidental”. Lavabit’s Ladar Levinson knows.

Which brings us to where we are today. Let Josh Gerstein set the stage:

A former e-mail provider for National Security Agency leaker Edward Snowden, Lavabit LLC, filed a legal brief Thursday detailing the firm’s offers to provide information about what appear to have been Snowden’s communications as part of a last-ditch offer that prosecutors rejected as inadequate.

The disagreement detailed in a brief filed Thursday with the U.S. Court of Appeals for the Fourth Circuit resulted in Lavabit turning over its encryption keys to the federal government and then shutting down the firm’s secure e-mail service altogether after viewing it as unacceptably tainted by the FBI’s possession of the keys.

I have a different take on the key language from Lavabit’s argument in their appellate brief though, here is mine:

First, the government is bereft of any statutory authority to command the production of Lavabit’s private keys. The Pen Register Statute requires only that a company provide the government with technical assistance in the installation of a pen- trap device; providing encryption keys does not aid in the device’s installation at all, but rather in its use. Moreover, providing private keys is not “unobtrusive,” as the statute requires, and results in interference with Lavabit’s services, which the statute forbids. Nor does the Stored Communications Act authorize the government to seize a company’s private keys. It permits seizure of the contents of an electronic communication (which private keys are not), or information pertaining to a subscriber (which private keys are also, by definition, not). And at any rate it does not authorize the government to impose undue burdens on the innocent target business, which the government’s course of conduct here surely did.

Second, the Fourth Amendment independently prohibited what the government did here. The Fourth Amendment requires a warrant to be founded on probable cause that a search will uncover fruits, instrumentalities, or evidence of a crime. But Lavabit’s private keys are none of those things: they are lawful to possess and use, they were known only to Lavabit and never used by the company to commit a crime, and they do not prove that any crime occurred. In addition, the government’s proposal to examine the correspondence of all of Lavabit’s customers as it searched for information about its target was both beyond the scope of the probable cause it demonstrated and inconsistent with the Fourth Amendment’s particularity requirement, and it completely undermines Lavabit’s lawful business model. General rummaging through all of an innocent business’ communications with all of its customers is at the very core of what the Fourth Amendment prohibits.

The legal niceties of Lavabit’s arguments are thus:

The Pen Register Statute does not come close. An anodyne mandate to provide information needed merely for the “unobtrusive installation” of a device will not do. If there is any doubt, this Court should construe the statute in light of the serious constitutional concerns discussed below, to give effect to the “principle of constitutional avoidance” that requires this Court to avoid constructions of statutes that raise colorable constitutional difficulties. Norfolk S. Ry. Co. v. City of Alexandria, 608 F.3d 150, 156–57 (4th Cir. 2010).

And, later in the pleading:

By those lights, this is a very easy case. Lavabit’s private keys are not connected with criminal activity in the slightest—the government has never accused Lavabit of being a co-conspirator, for example. The target of the government’s investigation never had access to those private keys. Nor did anyone, in fact, other than Lavabit. Given that Lavabit is not suspected or accused of any crime, it is quite impossible for information known only to Lavabit to be evidence that a crime has occurred. The government will not introduce Lavabit’s private keys in its case against its target, and it will not use Lavabit’s private keys to impeach its target at trial. Lavabit’s private keys are not the fruit of any crime, and no one has ever used them to commit any crime. Under those circumstances, absent any connection between the private keys and a crime, the “conclusion[] necessary to the issuance of the warrant” was totally absent. Zurcher, 436 U.S., at 557 n.6 (quoting, with approval, Comment, 28 U. Chi. L. Rev. 664, 687 (1961)).

What this boils down to is, essentially, the government thinks the keys to Lavabit’s encryption for their customers belong not just to Lavabit, and their respective customers, but to the United States government itself.

Your private information cannot be private in the face of the United States Government. Not just Edward Snowden, but anybody, and everybody, is theirs if they want it. That is the definition of bullshit.

[Okay, big thanks to Darth, who generously agreed to let us use the killer Strangelovian graphic above. Please follow Darth on Twitter]

8 replies
  1. Nigel says:

    Bear in mind, the US is also now a society in which ignorance of the law is no excuse – unless you happen to be responsible for enforcing it, as this rather more physically intimate 4th Amendment case demonstrates:
    This is where it all takes a surreal turn. David Eckert, Paul Young, you, I — and all other lay people — are expected to know every law on the books, at least to the extent that we can be held criminally and/or civilly liable for breaking them. But for police officers, judges and prosecutors — all of whom are paid to enforce and administer the law — there is no such expectation. Or at least, they aren’t held accountable when they don’t…

    …John Wesley Hall says that in this case, the fact that both a judge and a prosecutor were also wrong on the law, and that forced anal probes, enemas and colonoscopies aren’t an issue that have yet been addressed by the U.S. Supreme Court, the cops in New Mexico will likely be protected from any liability. “Because the police were acting under a warrant signed by a judge, it seems unlikely that the plaintiffs will be able to get around qualified immunity,” Hall says. And what about the judge and the prosecutor? They’re protected by absolute immunity, which — just as it sounds — makes it nearly impossible to sue them for damages, even when they’re flat wrong on the laws they’re paid to know, and even when police officers then rely on a judge or prosecutor’s mistaken views on the law in the course of egregiously violating someone’s rights.

    …Take a few steps back, and it’s rather astonishing that we’re even discussing this. These men were sexually assaulted, and not really even under the color of law. If we’re actually discussing whether government actors can or should be held accountable for digitally penetrating a suspect’s anus, then subjecting him to multiple enemas, then forcibly sedating him and shoving a camera up his rectum, whether they should be able to legally require medical personnel to assist them, and all in pursuit of evidence of a nonviolent, consensual crime — we’re already far, far removed from a system that takes justice or constitutional rights very seriously.

  2. bloodypitchfork says:

    @Nigel: quote:”Take a few steps back, and it’s rather astonishing that we’re even discussing this.”unquote

    Astonishing is an understatement. At 68 and having witnessed the last 40 years of government acts that assault human beings over the entire planet, I’m not astonished anymore. What I am is outraged. The mere fact that US citizens have a 16th Amendment gun to their heads which perpetuates these insidious infringements, is living testimony to why nothing will change until either the US populace decides to abolish it by force, or abolish it by..well..force. After all..

    quote:”…we’re already far, far removed from a system that takes justice or constitutional rights very seriously.”unquote

    Like 100 yrs removed. Exactly 100 yrs. ie..1913.

  3. bmaz says:

    @Nigel: A quote from John Wesley! Well done!

    John Wesley is a friend, and one hell of a superb lawyer; in fact so good that I have sent relatives to him. And his take is essentially correct as to the general parameters of the law.

    That said, I still file the lawsuit and let it play out. Based on the limited facts I have seen so far, I disagree with John Wesley’s characterization of likely futility. I think there is a viable claim because the drug dog and handler was not certified, and there was no other non-innocuous evidence of criminal activity afoot. Decent chance that lets you attack the presumptive validity of the warrant.

  4. dakine01 says:

    Hey bmaz, for a fact Twitter does not like this post – I just tweeted it and got the same red banner saying it was a spammy post as you were talking about this morning…

  5. liberalrob says:

    It’s amazing how quickly 9/11 destroyed the American people’s conception of a free society. Now it seems all anyone thinks of is how to protect themselves from the scary lunatics trying to kill us anywhere, anytime. Unsurprisingly, the answer is to convert the United States into a gigantic prison camp where everyone is watched 24/7; because that’s the only effective way to maximize safety. I guess bin Laden gets the last laugh. It’s sickening. And depressing to watch.

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