Fwd: Secrets, lies and Snowden's email: why I was forced to shut down Lavabit
Secrets, lies and Snowden's email: why I was forced to shut down Lavabit For the first time, the founder of an encrypted email startup that was supposed to insure privacy for all reveals how the FBI and the US legal system made sure we don't have the right to much privacy in the first place By Ladar Levison May 20 2014 http://www.theguardian.com/commentisfree/2014/may/20/why-did-lavabit-shut-do... 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. My company, Lavabit, provided email services to 410,000 people including Edward Snowden, according to news reports and thrived by offering features specifically designed to protect the privacy and security of its customers. I had no choice but to consent to the installation of their device, which would hand the US government access to all of the messages to and from all of my customers as they travelled between their email accounts other providers on the Internet. 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. (The government would later claim they only made this demand because of my "noncompliance".) Bothered by what the agents were saying, I informed them that I would first need to read the order they had just delivered and then consult with an attorney. The feds seemed surprised by my hesitation. What ensued was a flurry of legal proceedings that would last 38 days, ending not only my startup but also destroying, bit by bit, the very principle upon which I founded it that we all have a right to personal privacy. In the first two weeks, I was served legal papers a total of seven times and was in contact with the FBI every other day. (This was the period a prosecutor would later characterize as my "period of silence".) It took a week for me to identify an attorney who could adequately represent me, given the complex technological and legal issues involved and we were in contact for less than a day when agents served me with a summons ordering me to appear in a Virginia courtroom, over 1,000 miles from my home. Two days later, I was served the first subpoena for the encryption keys. With such short notice, my first attorney was unable to appear alongside me in court. Because the whole case was under seal, I couldn't even admit to anyone who wasn't an attorney that I needed a lawyer, let alone why. In the days before my appearance, I would spend hours repeating the facts of the case to a dozen attorneys, as I sought someone else that was qualified to represent me. 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. In Virginia, the government replaced its encryption key subpoena with a search warrant and a new court date. I retained a small, local law firm before I went back to my home state, which was then forced to assemble a legal strategy and file briefs in just a few short days. The court barred them from consulting outside experts about either the statutes or the technology involved in the case. The court didn't even deliver transcripts of my first appearance to my own lawyers for two months, and forced them to proceed without access to the information they needed. Then, a federal judge entered an order of contempt against me without even so much as a hearing. [snip]
From: Ulex Europae
On Tue, 20 May 2014 18:47:28 -0700 (PDT)
jim bell
Myself, I feel that no court can legitimately have any legal authority to order anyone to not speak about a legal proceeding.
By definition, or by their own nature, or both, state courts are free to do whatever they please. I thought you might be familiar with the concept...? Legitimacy? Whatever the government does is 'legitimate' because they say so.
It's easy to explain why: The First Amendment, and the well-known prohibition against prior restraint, etc. But the reality is that courts have developed the idea that "order" the "sealing" of documents. I don't have an argument with an idea that a court can order an employee of government to not speak, precisely because he IS a government employee. But Mr. Levison wasn't, and isn't a government employee. Would the procedure I described above 'get around' the law? Jim Bell
From: Juan
Myself, I feel that no court can legitimately have any legal authority to order anyone to not speak about a legal proceeding. By definition, or by their own nature, or both, state courts are free to do whatever they please. I thought you might be familiar with the concept...? Legitimacy? Whatever the government does is 'legitimate' because they say so.>
Well, in this case, it doesn't really have anything to do with what the State court can _do_. Everything would happen BEFORE the State court has an opportunity to realize what's going on. ("May you be in Heaven 30 minutes before the Devil knows you're dead"). The purpose is to use the State court as a 'prop': The document(s) filed with that State court will, presumably, _also_be orders in a Federal Court case which a Federal Court Judge orders some private individual to 'not disclose', as if that Federal judge had authority to do so. But, there is also a strong presumption that people have a right to file civil cases in state courts, and such documents filed in those State courts (generally) become public-domain documents. (Unless somebody specifically requests that those documents be, themselves, 'sealed', and the State court judge approves this.) If a person who is the target of a "sealed" Federal filing chooses to file the documents in a State court case, I presume he remains entitled to file those documents freely in the State court case. And, once so file, those documents will automatically become public-domain documents (at least until they are, themselves, sealed) and they can be published on the Internet. It would be a very tricky question whether any party in this whole mix can be 'punished' for arranging this kind of dance. I think a lawyer would have a good-faith belief that this is a proper exercise of law. The ultimate goal, though, is to 'legally' publish documents that some Federal judge doesn't want to see published. Since the mere publication of those documents destroys their secrecy, I think some lawyer should look into this, for the future. Jim Bell
It's easy to explain why: The First Amendment, and the well-known prohibition against prior restraint, etc. But the reality is that courts have developed the idea that "order" the "sealing" of documents. I don't have an argument with an idea that a court can order an employee of government to not speak, precisely because he IS a government employee. But Mr. Levison wasn't, and isn't a government employee. Would the procedure I described above 'get around' the law? Jim Bell
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Ulex Europae